author: Per Curiam. Garrison, J.

text:
    Thomas C. Lazear et al., executors, appellants, v. American Steel Foundries, respondent.
    [Argued March 9th, 1916.
    Decided June 19th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante p. ,€1.

      Messrs. Young & Bigelow, for the appellants.

      Messrs. Lindcibunj, Depue & Faulks, for the respondent.
   Per Curiam.

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

Garrison, J.

(dissenting).

I must dissent from the proposition that a preferred stockholder forfeits his right to dividends by his failure to surrender up his contract as a creditor of the common stockholders and become one of such debtor class. That is what the scheme in the present case amounts to. That such a change must be the voluntary act of each preferred stockholder deciding for himself is perfectly clear. The vice-chancellor did not decide that such an exchange was or could be compulsory; this court has not so decided, and it is safe to assume that no court acting under our constitution and statutory provisions will ever so decide.

If the act of the preferred stockholder was purely voluntary, the doctrine of laches has no application. Where there is no obligation to perform an act there is no-right to penalize for its non-performance. If the complainant did not care to surrender his preferred stock there was nothing for him to do but to hold on to it. He did not attack the scheme;, and did not care to, he simply gave to it its legal effect. If, however, by any refinement it can be held that he ought to have given notice of his decision not to surrender his stock, the proof is that he did give such notice and the reason therefor, viz., that the stock was held by him under a trust which would be violated by such a surrender of the trust property. This notice was given to the corporation officers in charge of the proposed scheme; if they did not see fit to communicate it to the other preferred stockholders, it was probably because they knew that it had no legal significance, but in no event can the failure of the officers of the corporation be laid at the door of the complainant. The complainant is today as much a preferred stockholder as he ever was, and his contract as such, has not been and cannot be altered either by the proposed scheme of exchange or by the voluntary acceptance of it by other preferred stockholders.

The only debatable question is whether the complainant is entitled to full dividends out of the actuál profits, or only to such as would be applicable to his stock if all the preferred stock were still outstanding. Either remedy is within the scope of his bill and its prayer; he may have asked for too much, but that should not lead to the dismissal of his bill.

As to laches, that is out of the question, unless and until the court that applies such doctrine first decides that a creditor of the corporation can be compelled in invitum to become a common stockholder by the action of a sufficient number of his fellow-creditors. To point out that such a doctrine receives no support from the decision of the present case is the- real object of this memorandum, which, incidentally, serves to explain the ground upon which I base my vote to reverse.

I -am requested by Mr. Justice Parker - and by Judges White and Gardner to express their concurrence in this view.

For affirmance — The Chief-Justice, Swayze, Trenohard, Bergen, Minturn, Kaliscii, Black, Heppenheimer, Williams, Taylor — 10.

For reversal — Garrison, Parker, White, Gardner — 4.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Mack Manufacturing Company, appellant, v. Citizens Construction Company et al., respondents.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 85 N. J. Eq. 881.

      Mr. Merritt Lane, for the appellant.

      Mr. Peter Baches, Mr. George W. Macpherson, Mr. Edward L. Kalzenbach and Mr. William J. Baches, for the respondents.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayize, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, White, Terhune, Heppenheimer, Williams, Taylor, Gardner — 15.

For reversal — Hone.


text:
    John H. Meeker, trustee, &c., complainant-respondent, v. Katherine G. Forbes et al., defendants-appellants.
    [Argued December 1st, 1915.
    Decided June 19th, 1916.]
    On appeals from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 8J¡- N. J. Fq. 271.

      Mr. Atwood L. DeCoster, for the complainant.

      Mr. August F. Roche, Jr., Messrs. Vredenburgh, Wall & Careij, Mr. Philemon Woodruff, Messrs. McCarter & English and Messrs. Gallagher '& Gallagher, for the defendants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisci-i, Black, Terhune, Heppenheimer, Williams — 12.

For reversal — Hone.


text:
    Ben Schweitzer et al., appellants, v. Philip Schneider et al., respondents.
    [Submitted April 5th, 1916.
    Decided June 19th, 1916.]
    On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported mte p. 88.

      Messrs. Hudspeth & Rysdylc (Mr. Nathan Waxmcm, of the New York bar, on the brief), for the appellants.

      Messrs. McDermott & Hwright (Messi’s. Hillquit ,& Levmi, of the New York bar, on the brief), for the respondents.
   Per Curiam.

The decree of the court of chancery is affirmed, for the reasons stated by the vice-chancellor in his opinion which is not to be taken as deciding that the funds in controversy were not charged with a trust in the hands of the respondents, as a superficial reading might indicate, but rather as defining the class of persons for whose benefit such trust exists, while denying that it exists for the .benefit of a certain other class.

No. 26—

For affirmance — The Chief-Justice, Garrison, Swayee, Trenohard, Parker, Bergen, Minturn, Kalisch, Black, White, Terhune, Heppenpieimee, Williams, Taylor, Gardner — 15.

For reversal — Fone.

No. 27—

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisce, Black, White, Terhune, Heppenheimer, Williams, Taylor, Gardner — 15.

For reversal — None.


text:
    William E. R. Smith, proponent, Elizabeth Haines, Edith J. Adams, George McM. Godley, Carrie E. Scholfield, Charles P. Scholfield, the College Board of the Presbyterian Church of the United States, William H. Hulick, legatees, and Randolph Rodman, named in the instrument purporting to be the last will of William Runkle, deceased, as executor, whose name was obliterated, respondents, v. Harry G. Runkle, caveator-appellant.
    [Argued March 16th. and 17th, 1916.
    Decided June 19th, 1916.]
    On appeals from a decree of the prerogative court, reported in 97 Atl. Rep. £96.

      Messrs. Bum, Tamblyn ,<& Colyer, Messrs. Church & Harrison, M'essrs. Condict, Condict & Boardman, Mr. William Huele, Jr., Mr. Jehiel Q. Shipman, Messrs. McCarter •& English and Mr. Charles B. Storrs, for the respondents.

      Messrs. Griggs & Hm-ding, for the caveator-appellant.
   Per Curiam.

The decree of the prerogative court, affirming the decree, of the orphans court of Essex county, admitting to probate the last will and testament and codicil thereto of William Runkle, deceased, in the form therein expressed and adjudged, is in all things affirmed, for the reasons given in the opinion of Judge Martin, filed in the orphans court of Essex county.

This is the case which is designated in the record as admitting to probate the first and second pages in one-half sheet of legal cap paper, as part of the will and codicil.

For affirmance — The Chief-Justice, Gaerison, Swayze, Parker, Bergen, Minturn, Kalisch, Black, White, Terhune, Heppeni-ieimer, Williams, Taylor, Gardner — 14.

For reversal — Hone.


text:
    United New Jersey Railroad and Canal Company et al., respondents, v. Crucible Steel Company of America et al., appellants.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 86 N. J. Eq. 7.

      Messrs. Vredenburgh, Wall & Carey, Messrs. Edwai'd A. & William T. Day and Messrs. Mwrm ,& Church, for the respondents.

      Messrs. Peirce & Hoover, for the appellants. ■
   Per Curiam.

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

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenoiiard, Parker, Bergen, Minturn, Kalis oh, Black, White, Terhunb, Heppenheimer, Williams, Taylor, Gardner — 15.

For reversal — Hone.


text:
    In the matter of the last will and testament of Louisa M. Wadskier, deceased.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    Where a testatrix by her will made a gift in the following words: “To my niece, Elizabeth S. White, I give the sum of $10,000 for her personal use, not to be given away to missions; but invested for her benefit”— Held that the bequest was absolute, and that by reason of her death her legal representative is entitled to receive this sum from the trustee.
    On appeal from a decree of the prerogative court.

      Mr. John F. Earned, for the appellant.

      Mr. Charles V. D. Joline, for the respondent.
   Per Curiam.

The sole question involved in the present case is the true construction of subdivision E of paragraph 4 of the will of the testatrix.

The proceeding was instituted in the orphans court of Camden county, and the true construction of the testamentary provision was declared by that court in an opinion filed in the case by Probate Judge Boyle, in which subdivision F is set out at length. That opinion is as follows:

“Boyle, J.
“This is a proceeding for the construction of subdivision F, paragraph é, of the will of Louisa M. Wadskier, deceased, in the following language: ‘To my niece, Elizabeth S. White, I give the sum of ten thousand dollars for her personal use, not to be given away to missions, but invested for her benefit.’ The said Elizabeth White died on the 12th day of February, 1915, leaving a last will, naming as executor the petitioner. There was an agreed state of facts presenting for decision the single question as to whether the above request was absolute or qualified. The trustee contends that the provision in question, in connection with other sections of the will, made him a trustee for the said $10,000, to pay the interest thereof to Elizabeth White during her life, and after her death to divide this sum among the persons named as beneficiaries of the general estate. One of the premises upon which this construction is based is without support, so far as I can ascertain by the most careful scrutiny of the will. The trustee, however, has insisted with such confidence that a division of this fund among the general legatees was contemplated by the will that I shall refer with some detail to the provisions indicating the apparent scheme of distribution testatrix had in mind.
“The first, second, third and. last paragraphs of the will deal with matters unconnected with the trustee and the distribution through him of the estate. The fourth paragraph may be termed the disposal part of the will, and to it alone we turn to ascertain the intention of the testatrix respecting the division of her estate. In the first part of this paragraph, the estate> real and personal, is given to a trustee with no mention of any duties toward any person to share in this trust. The preliminary instructions and grant of authority had reference only to the investment, control and disposition of the estate in possession of the trustee. The duties of the trustee touching this fund are set forth in twenty-four succeeding subdivisions of this paragraph. The relation of the trustee' to each of these provisions is separate and distinct.
“In subdivision A his duty is plainly indicated by adding to the words of gift the phrase ‘and I direct my trustee to pay.’ The provision for a lapse of the legacy herein bequeathed, and the evident identification of ‘this money,’ ‘this portion,’ clearly prove the separate and distinct relationship of the trustee to this bequest. In subdivisions B, C, D and E the duty of the trustee consists of one act, the payment of the sums specified to the persons named. The words ‘and I.direct my trustee to pay,’ while not expressed, are plainly implied in each of these subdivisions. Is not subdivision E also elliptical and properly construed should it not read, to my niece Elizabeth White I give and I direct my trustee to pay the sum of $10,000 for her personal use, &e.
“In this manner the language of each bequest may be examined and it will be observed that whether the bequest is absolute or qualified the trustee was either to pay over at once or separate it from the general estate and perform the duties .set forth in each subdivision. The general estate, as defined in the last subdivision of paragraph 4, is that sum, ‘after the legacies have all been paid, my house sold with the contents thereof and the balance of money added thereto.’ ‘Legacies’ are here used and plainly refer to the twenty-three preceding bequests, since none of them were'to form a part of this general estate. There was a possibility of one of these bequests lapsing into the fund, and for this contingency there was an express provision — subdivision A. It seems demonstrated that the subdivision in controversy is to be viewed as a distinct and separate provision. • It follows, therefore, that it lacks not only a provision for a gift over, but language consistent with a trust. The words of gift in the first part clearly eliminate any connection with the trustee. It is hardly conceivable that the reference to missions was intended for the trustee, for it would be too awkward a use of language by one having a knowledge of a trust, as did the draftsman, so clearly indicated in several parts of the will. Why should a trustee be enjoined not to spend any portion of the principal fund? The direction as to missions refers to the legatee otherwise it is unintelligible. It is hardly probable that a trus tee was cautioned not to give away the fund to missions. The mere notion of a trust is sufficient to dispel such a thought. A trustee could not expend, the principal for any purpose. Therefore, if he were trustee of this fund, the instruction not to be given away to missions would be clearly superfluous. The direction ‘invested for her benefit5 does not necessarily import a continuance of-the trust. There is one subject throughout this subdivision,-the fund of $10,000, of which it is first predicated, that it shall be given to the legatee for her personal use. It can only reach her through the trustee wljo holds the estate. Therefore, the trustee is to give her this sum, and when he does so, his connection with this legacy is at an end. This is further evident from the improbable situation already mentioned of coupling the trustee with the second predicate, ‘not to be given away.’
“If, therefore, a consideration of the preceding clauses indicates an elimination of the trustee, it is not a consistent construction that seeks again to read the trustee herein merely because an investment of the funds is contemplated, for there is no mention of income, or its payment, or period during which the fund shall be invested. On the other hand, the absence of an expression as to income or the period during which the fund was to be invested, is in entire accord with the extinction of any connection'of the trustee since he had already been directed to pay the sum to the legatee for her personal use. At all events, the expression as to the investment does not import a limitation of the gift. In Casper v. Walker, 33 N. J. Eq. 35, 38, there was in dispute a paragraph of a will in the following language: ‘I give and bequeath unto by beloved wife, Clarissa C. Peterson, the sum of $4,000. The same'to be put at interest in some safe investment and secure to her during her natural life.* Chancellor Runyon, citing Gulick v. Gulick, 27 N. J. Eq. 498, and other authorities, said: ‘The gift of $4,000 to the testator’s wife is absolute in its terms. It is not given over in'any event, either expressly or by implication. • The will, indeed, provides that it shall be invested for and during her life, but that is merely á provision as to 'the manner, of its' enjoyment by her during her life; the- gift of the fund is, nevertheless, absolute, subject to'the qualifying trust.’ ■ ■ '
“The trustee, of course, concedes the principle enunciated in Gulick v. Gulick, supra, that the gift of income of personalty, without limit as to time, is equivalent to a gift of the principal, but alleges, Ta the ease at bar, there is a clear limitation and the rule does not apply.5 As I have already shown, in an analysis of the provisions of the will, the claim of the trustee as to a limitation is unsupported.
“I am convinced that the testatrix had no intention to limit the bequest to her niece. Her thought would have been legally expressed by the use of the words T give.5 Hpon this point she was apparently overanxious to be certain, and this may explain the added words Tor her personal use."
“However, there is no warrant for a construction of the will that is out of harmony with the text and a repudiation of the common and ordinary meaning of the language used. It is my opinion that the bequest to Elizabeth White, mentioned in subdivision P, paragraph 4, was absolute, and that by reason of her death, her legal representative, the petitioner, is entitled to receive this sum from the trustee.55

Prom the decree entered in the orphans court, upon the basis of that opinion, the present appellants appealed to the prerogative court, and that court, fully concurring in the views expressed in the opinion of Judge Boyle, decreed “that the decree of the orphans court be affirmed, and that the appeal of the appellant be dismissed.55 The latter part of this mandate is evidently due to inadvertence on the part of the draftsman of the decree.

We concur in the view of the prerogative court that the decree of the orphans court should be affirmed, and it will be so ordered. We base our conclusion upon the views expressed in the opinion delivered by Judge Boyle in the orphans court.

For affirmance — The* Chief-Justice, Garrison, Swayze, Trenchaed, Parker, Bergen, Minturn, Kalis oh, Black, White, Terhune, Heppenheimer, Williams, Taylor, Gardner — 15.

For reversal — Hone.


author: Walker, Chancellor.

text:
    In the matter of the release or relinquishment of the right of dower of Cornelia G. Martin, in a part of certain lands whereof her husband, Luther Martin, died seized.
    [Decided July 7th, 1916.]
    1. It is fundamental that in every proceeding of a judicial nature it is essential that the person whose rights are to be affected should be a party to the proceeding, and have an opportunity of making a defence.
    2. The presence of a guardian before the court to represent a lunatic is essential, and the guardian can only be appointed when the lunatic is before the court as a party.

      3. A lunatic, like an infant, is served personally with process, and such service should be in the presence of some competent person.
    4. A dowress must be made a party to any suit affecting her dower.
    5. Qucere: Could service of process on a confirmed and dangerous lunatic dowress be dispensed with in a case affecting her right of dower.
    6. Under the fourteenth amendment to the constitution of the United States, to constitute a valid judgment there must be a competent tribunal within whose jurisdiction the defendant must be brought by service of process within the state, or by his voluntary appearance.
    7. Process is the means of compelling a defendant to appear in court. It need not necessarily be a subpcena, or other writ. It may be an order or notice.
    8. Every state has the power to prescribe the reasonable notice which shall be given in order to subject a defendant to the jurisdiction of its courts.
    On motion for an order of reference fo a master.

      Mr. Alfred 8. March and Mr. I. Benjamin Giuclcfield, for the petitioners.
   Walker, Chancellor.

The petitioners have filed a petition for the purpose of obtaining a release or relinquishment of the right of dower of a dowress alleged to be incapacitated by mental infirmity or disease from executing a valid release or relinquishment of the same, pursuant to section 28 of the statute entitled “An act relative to dower” (Comp. Stat. p. 2052, amended by P. L. 1915 p. -396, but not so as to affect this application), and move for a reference to a master under the second section of that statute— no notice to the dowress of the intended application or of having a guardian ad litem appointed for her having been given; and the question arises whether the motion should be granted without notice to the dowress, and whether the relief ultimately sought should be granted without hex being made a party to the proceedings and being represented by guardian before the court.

It is fundamental tbát in every proceeding of a judicial nature it is essential that the person whose rights are to be affected should be a party to the proceeding and have an opportunity of making a defence.

This rule was declared with great emphasis and comprehensiveness hy Chief-Justice Green in Hess v. Cole, 23 N. J. Law 116 (at p. 124). There, a decree of the orphans court setting off dower was declared void, upon the ground that a party whose interests were affected hy it had not been served with notice of the intended application for the appointment of commissioners, as required by the statute in that behalf. And there the chief-justice was not content to rest the decision of the supreme court upon the failure to give notice to the party to be affected by the intended application as required by the express provisions of the statute, but went further, and rested'the decision upon the broad ground of the clearest principles óf justice, irrespective of the statutory requirements, and irrespective of. a summary way of proceeding, or otherwise requiring the giving of such notice, saying (at p. 124):

“Every common law record shows upon its Yace that the defendant was either in custody, or was summoned or attached to answer to the action. And, however inconvenient may have been the strictness with which the principle was applied, and the extent to which- it was enforced in ancient common law proceedings, the principle itself ’ is by' no means peculiar to the common law. It pervades, in fact, every mode of law and every well-regulated system for the administration of justice.
“The time and the manner of the notice, whether it shall be actual or constructive, whether’ personal or otherwise, are subjects of legislative control, founded upon consideration of policy or expediency. There are modes prescribed by statutes arising from the necessity of the case, in which judgments may be recovered without notice to the defendant; But in the absence of statutory provisions it is an inflexible rule of law, as well as the clear dictate of justice, that no man shall be deprived of his rights, either of person or property, without' an opportunity of being heard. It is not enough that the'court have jurisdiction of the subject-matter; they must also have jurisdiction of thé person." In every proceeding of a judicial nature it is essential that the person'whose rights are to be affected should be a party to the proceeding and have an opportunity of making a defence.”

And further continuing as to the effect of the want of such opportunity, the chief-justice said (at p. 125) :

“As it appears expressly by the plea that no1 notice was given to the plaintiff, William Hess, of the application to the orphans court, as it does not appear that he became in any way a party to those proceedings, the decree of the orphans court, so far at least as it operates upon his rights, is null and void.”

Now, what are the rights of the dowress to be affected under the statute invoked?

The estate or interest of a widow in lands in which she is entitled to dower, is the right to have one-third set off to her by metes and bounds, and to enjoy the same for her natural life.

It would be unjust to her to take away that right when the clear yearly income is greater than the yearly interest on the substituted bond or fund, for the sake of promoting a sale in the interest of the owner of such lands. It would be equivalent to giving the property of one person to another. Haulenbeck v. Cronkright, 23 N. J. Eq. 407 (at p. 410). And, although the statute mentions only the intereste of the owners, nevertheless, it must be construed, I think, as having regard to the interest of the person entitled to the right of dower.

The first section of this statute makes it lawful for the chancellor to direct a release or relinquishment of her dower to be made by a master, whose deed, executed in behalf of the dowress mentally incapacitated, shall release and bar all the dower or estate in dower to which such person is entitled in lands, whenever it shall appear to the chancellor’s satisfaction that “the interests of the owners of such lands and premises require and would be promoted by a sale of the same.”

And the second section directs that upon a petition filed -for that purpose, the chancellor may, in a summary way, proceed to inquire into the merits of the application by reference to a master, or otherwise, and in case the release is ordered by him 'in conformity with the prayer of the petition, a bond shall be given to the. chancellor, or guardian of such person, in such penalty and with such surety as he may direct, to secure to the guardian of such person so entitled to dower the enjoyment during her life of a fund equal to one-third of the whole proeeeds of sale of the lands and premises’ or, in lieu of such bond, if it shall appear satisfactory to the chancellor, the sum of one-third of the whole proceeds of sale shall be invested under his direction, and the interest thereof shall go to the widow during her life, or a sum in gross may be accepted.

Erom this examination of the statute in question it clearly appears that the rights of the dowress will be affected if the prayer of the petition be granted by barring the estate of dower given her by the general act relative to dower (Comp. Stat. p. 204 § 1), and substituting something else in lieu thereof, and that therefore it is essential that she should be a party to the proceeding now before the court, and have an opportunity of making defence within the rule declared in Hess v. Cole, and that notice to her should be given of the intended application, although no such notice is required by the statute under which the petition is filed, and that, if she be shown to be incapacitated by mental infirmity, a guardian ad litem should be appointed for her by whom she may appear and answer and defend.

A decree cannot be made as to any person who is not a party to the suit. Armstrong v. Armstrong, 19 N. J. Eq. 357; Collins v. Kiederling, opinion by the chancellor not yet reported. See, also, Cooper v. Wallace, 55 N. J. Eq. 192, 196.

It seems to be thought that this summary proceeding, looking to an adjudication with reference to the rights and interests of incapacitated parties, may be had without notice to them. This cannot lawfully be done. The presence of a guardian before the court to represent an incapacitated party is essential, and the-guardian can only be appointed when the party is before the court. How the party is brought in will be treated of presently.

A reported ease under the statute referred to is In re Booskirk, 24 N. J. L. J. 591. Hpon the filing of the petition in that case, Chancellor McGill made an order appointing the clerk in chancery guardian ad litem for Mrs. Booskirk, a lunatic, who had an inchoate right of dower in the lands of her husband, which he desired to sell, and in the same order referred the matter to Special Master Martin P. Grey, afterwards one of the vice-chancellors. The-guardian appeared by counsel before the master and made certain: contentions, and the master reported in favor of granting the prayer of the petition, and a decree for the conveyance of the wife's inchoate dower was consequently made. An examination of the files of that case shows that the guardian was appointed for the wife upon the case of lunacy made against her by the ex parte proofs annexed to the petition, and without any notice of the proceeding to her. I do not think the learned chancellor went far enough, and.I am unwilling to hold that such a proceeding may be had without notice to the person entitled to the right of dower, inchoate or consummate; and this for reasons presently to be stated.

In Van Horn v. Hann, 39 N. J. Law 207, Mr. Justice Reed, writing the opinion of the supreme court, says (at p. 218) :

“The common law rule is, that a lunatic defends in the same manner as ordinary persons. Process is served upon him personally; then, if an infant, he’appears by guardian, and if of full age, by attorney.
“This rule seems as old as Beverley’s Case, 4 Coke 124b. See 1 Tidd Pr. 98 note b; 1 Arch. Pr. 25; 2 Sound. 333 note 4, and cases cited in Combs v. Janvier, ante. This was the rule in actions at law.
“In suits in equity, the practice is different. In those the lunatic defends by guardian ad litem, and his committee is appointed such guardian as of- course (Westcomb v. Westcomb, 1 Dick. 233), unless there is no committee, or the committee is, in interest, adverse to him in the suit. Shelf. *425; Morgan’s Case, 3 Bland Ch. 332. Then a third party is appointed.”

The question now arises, How is the guardian of the lunatic to be appointed? The answer, I think, is perfectly plain. It is that the guardian may only be appointed upon the lunatic being brought in as a party. In Dick. Ch. Prec. (rev. ed.) 105; in note (a), it is said:

“An idiot or lunatic (so found by inquisition) must defend by the guardian of Ms estate, who, as well as the idiot or lunatic, is a necessary party to the suit. Mit. Pl. 23, 82; Story Eq. Pl. § 70. Lunatics (not so found) and other imbecile persons must defend by guardian appointed for the purpose of the suit.”

In the same work, Dick. Ch. Prec. (rev. ed.), treating of process for appearance, the learned author says, in note {a), on p. 19:

“Service against an infant is to be made on the infant - personally. This appears to be the English practice. See Garnum v. Marshall, 1 Dick. 77; Baker v. Holmes, 1 Dick. 18. In Cooper v. Green, 2 Add. Eccl. 454, it was held that process served on a minor must be made in presence of his natural or legal guardian. The service of a subpmna upon the mother or father-in-law of an infant was, on motion for that purpose, allowed where the mother secreted the infant parties to the suit. 2 Mad. Ch. Pr. 247. But in Mortimer v. Cropsey, where the mother concealed the infant, a motion was made that service upon her be deemed good service. The chancellor refused it, and ordered that publication be made under the statute as for a concealed defendant, stating that upon the expiration of the allotted time, if no appearance was entered, the court would appoint a guardian ad litem. A similar course was pursued where the non-resident defendant was a lunatic. 1 Hoffm. Ch. Pr. 194• * * * A lunatic, like an infant, is served personally and it should be in the presence of some competent person.”

And in the same work — at p. 647 note {a) — reads as follows:

“(a) Ten days’ notice of the taking of the inquisition shall be given to the person who is the subject thereof; the chancellor, however, may, for good reasons, allow shorter notice or dispense with notice altogether. Proof of the giving of the notice shall be filed with the inquisition, and in case less than ten days’ notice has been given, or no notice at all, the reasons therefor shall appear by affidavit, to be filed with the inquisition. Rule 173. The want or defect of notice is not aided by the alleged lunatic appearing before the jury and attempting a defence. An inquisition taken without due notice will be set aside and a new commission awarded. Ex parte Whitenack, 3 N. J. Eq. 252. In cases of confirmed and dangerous madness, notice may be dispensed with, but then only by the express order of the court. In re Vanauken, 10 N. J. Eq. 186. Before entering upon the examination, the commissioners should require due proof of the service of notice on the lunatic.”

If, as was held in Vanauken, an alleged lunatic, 10 N. J. Eq. 186, a person, on. trial under a coiñmission of alleged lunacy has a right to be present and make his defence, surely an .alleged lunatic, whose right of dower is sought to be changed from that of the enjoyment of part of the lands of her deceased husband into a sum in cash equal to the value of her dower, has a right to be heard upon that question by her guardian; and, the guardian can only be lawfully appointed on notice to her, for, in the first instance, she had a right to defend on the question of lunacy, an adjudication of which must precede, or at least be contemporaneous with the appointment of a guardian.

It is not averred in the case at bar that, tire lunacy of the subject of the .inquiry, the dowress, is of such character as would authorize the dispensing with notice under the VmctMlcen Case and the rule of court. Therefore, no case is made for dispensing with notice of these proceedings to her, even assuming that service on a confirmed or dangerous lunatic would be dispensed with in this class of cases. If service upon a mere infant in its mother’s aims is essential to the jurisdiction of the person of the infant, I do not see why the same sort of service is not essential to jurisdiction over the person of a lunatic, even if dangerously mad. The incapacity and inability of either is equally great, and the fundamental requirement of notice would seem to be also equally great.

In re Alexander, 53 N. J. Eq. 96, was a case under the statute here invoked, before it was amended, and in that case a guardian ad litem was appointed for the lunatic wife. And Vice-Chancellor Green held (at p. 100) that a dowress must be made a party to any suit affecting her dower. The act, as it originally stood, provided for the involuntary alienation, through a master in chancery, of an inchoate right of dower for which a wife, by mental infirmity or disease, was incapacitated from executing a valid release or relinquishment (Gen. Stat. p. 1281 § 28); but. now the relief is extended to the case of a light of dower, without its being restricted to an inchoate right. Comp. Stat. p. 2052 § 28. The dower in the case before me, by reason of the death of the husband of the dowress, has become consummate and has ripened into an estate.

Chapter 28 of the laws of 1915 (P. L. 1915 p. 51) provides that whenever it shall be made to- appear to the chancellor by verified petition that a resident of this state is an idiot or lunatic, and that no inquisition has issued to determine the same, and that such person is possessed of real and personal property and no. guardian has been appointed for him, it shall be lawful for the chancellor to ascertain in a summary manner the truth of the petition and to appoint a guardian for such idiot or lunatic. In that act, as in the one before the court in the present case, no notice is directed to be given to the person who is the subject of the inquiry, and whose rights are to be affected, and the proceedings looking to the adjudication are not set forth. As soon as that statute was invoked this court found it necessary to hold that in the absence of provision as to what the proceedings under it should be, they should be the same as in like eases, which were regulated by rules 172, 178. See the opinion of Advisory Master Buchanan, In re Foran, 85 N. J. Eq. 288. which I adopted as the opinion of thig court. While that opinion does not in terms state that notice must be given to the alleged lunatic, the rules referred to require it, and in the order of reference in the Foran Case, it was expressly provided that the master should cause ten days’ notice of the time and place appointed for bearing to be given to Eoran.

Chief-Justice Green’s remark, in Hess v. Cole, 23 N. J. Law (at p. 124), that “there are modes prescribed by statutes arising from the necessity of the case, in which judgments may be recovered without notice to the defendant,” it seems to me could only have referred to actions strictly m rem, which are distinguished from those against a person, in vindication of a preexisting right in or to property primarily liable, by seizure and prosecution of such property, without any suit against its owner. Wapp. Proc. in Rem § 20. See, also, 1 Cyc. 730.

The fourteenth amendment to the constitution of the United States, providing “nor shall any state deprive any person of life, liberty or property, without due process of law,” has been held to mean that to constitute a valid judgment there must be a competent tribunal within whose jurisdiction the defendant must be brought by service of process within the state or by his voluntary appearance. 9 Fed. Stat. Anno. 431; Pennoyer v. Neff, 95 U. S. 714; 24 L. Ed. 565; McGuinness v. McGuinness, 72 N. J. Eq. 381, 387. Process need not necessarily be a subpoena or other writ. An order of the court of chancery directing a receiver to take possession and convert the goods of a corporation into money has been held, to be process. Wood v. McCardell, &c., Co., 49 N. J. Eq. 433. See, also, Weinstein v. Herman, 81 N. J. Eq. 236. And the proceedings may be summary. Vice-Chancellor Stevenson, in Pierce v. Old Dominion, &c., Smelting Co., 67 N. J. Eq. 399, observes (at p. 410) that every state has the power to prescribe the reasonable notice which shall be given in order to subject a defendant to the jurisdiction of its courts, and that it is of no consequence what the form of the notice may be, citing authorities. Speaking of the summary proceedings for the winding up nf insolvent corporations, at the bottom of p. 409, the learned vice-chancellor remarks that the court gains jurisdiction in that class of cases by giving reasonable notice to the defendant corporation .and that no process need be issued. A more accurate statement doubtless would have been that no-process by way of writ of subpoena was required to be issued in this class of cases, and that reasonable notice to the defendant was process in and of itself. Process is the .means of compelling the defendant to appear in court. 3 Bl. Com. 279. In 2 Bouv. L. Dic. (Rawles’ rev.) 766, one of the definitions of process is, “a writ, warrant, subpoena or other formal writing issued by authority of law.”

An order will be made on Mrs. Martin to show cause why the prayer of the petitioners’ petition should not be granted and why an order should not be made directing the release or relinquishment of her dower to be made by a master of the court of chancery, according to the statute in such case made and provided, a certified copy of the petition and affidavits and of the order to be served personally upon her. If, upon the return of the order, Mrs. Martin does not appear, the clerk of the court will be assigned and appointed guardian ad litem to appear and ■answer for her. An order of reference will then be made to a ■special master and the matter- may be brought on for a summary hearing.-


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    Henry W. Bull v. International Power Company.
    [Decided July 17th, 1916.]
    1. A receiver, being an officer of the court, and at all times subject to its direction and orders, may on suitable occasions, when confronted with questions of intricacy or difficulty, apply to the court for instructions and advice with reference to the discharge of his duties.
    2. A receiver represents all interests, and, under the direction of the court, manages the property for the benefit of all concerned.
    3. When a corporation of this state is in the hands of a domestic receiver, but has assets in the State of New York, in which jurisdiction a receiver has been appointed for the benefit Of creditors residing in that state, and its court, as matter of comity, directs its receiver to give the receiver in this state a proxy to vote the capital stock in a New York corporation for directors of that concern, which capital stock is owned by the insolvent New Jersey corporation, comity requires of this court a direction to its receiver to give minority representation on the board of directors of the New York corporation in the interest of New York creditors and stockholders of the insolvent New Jersey corporation.
    On application by domestic receiver for instructions of the court.

      Messrs. Vroom, Dickinson & Bodine, for Mr. Wilbur. F. Sadler, Jr., the New Jersey receiver.

      Mr. John JS. Donnelly (of the New York bar), for Mr. Charles H. Bidder, the New York receiver.
   Walker, Chancellor.

On December 11th, 1911, General Wilbur F. Sadler, Jr., was appointed by this court receiver for the International Power Company, a domestic corporation, having assets in the State of New York. Later, Mr. Charles H. Bidder, of New York, was appointed by the supreme court of that state, in appropriate proceedings, receiver of the'property of the defendant therein. Erom the- time of the appointment of the Yew York receiver difficulties arose as to jurisdictional questions between the Yew York receiver and the Yew Jersey receiver, the principal subject of controversy being the voting rights upon some seventy-one thousand three hundred and sixty-six shares, a majority of the stock of the American and British Manufacturing Company, owned by the defendant, which shares were transferred on the books of that company to the name of the Yew York receiver. The final result of the disputes referred to was, that on June 16th last, the appellate division of the supreme court of the State of Yew York granted an order making Beceiver Sadler a party to the proceeding instituted in that state and instructing Mr. Bidder, the receiver appointed in Yew York, to give General 'Sadler a proxy to vote for the directors of that company, the stock of the American and British Manufacturing Company held by him, Mr. Bidder, as Yew York receiver.

A meeting for the election of directors for the American and British Manufacturing Company is pending, and General Sadler has applied to this court for instructions as to whom he should vote for for directors of the last-named company. Eive are to be elected. The receiver has named five gentlemen of apparently high standing, integrity and business capacity, including the complainant, Mr. Bull, as persons well qualified to become directors of the American and British Manufacturing Company. This application was very properly made on notice to the Yew York receiver.

The appellate division of the Yew York supreme court, in its opinion holding that the Yew Jersey receiver should have the power to vote the stock of the American and British Manufacturing Company, observed:

“By the rule of comity adopted every power should be given to the domiciliary receiver, subject to instructions from the chancery court of that state, except such power as is necessary for the protection of the Yew York creditors.” * * *
“Affidavits are 'presented for and against the advisability of the continuation of the present directors. To my mind, however, that question is one which should be left to the domiciliary receiver, under the direction of the domiciliary court, and our courts, looking only to the securing of New York creditors their fair share in the distribution, should not take upon themselves the responsibility of such determination. It will not be presumed that the management is to be so far changed as will interfere with present contracts, or as in any way to obstruct the progress of the work. The good'faith and competency of the domiciliary receiver will not here be questioned.”

The questions presented for determination arfirst, should the receiver be given directions as to his duty in the premises, and second, if so, what directions should be given?

It appears that a receiver has a very wide latitude in the matter of asking advice .and seeking the protection of the court appointing him with reference to the discharge of his duties.

In Cammack v. Johnson, 2 N. J. Eq. 163, it was held: “Receivers, being officers of the court, are at all times entitled to, and must receive, its advice and protection.”

Of course, an application for directions upon unimportant' matters would be discountenanced, and, I may say, that such applications are rarely, if ever, made. When confronted with questions of intricacy and difficulty, they may always with propriety be made.

In High Rec. (4th ed.) 216 § 188, it is laid down:

•“A receiver being always regarded as an officer of the court, and at all times subject to its direction and orders, it is proper, in the discharge of his duties, that he should on suitable occasions apply to the court for instructions and advice; and he is at all times entitled to such advice 'from the court, and should not hesitate to apply for it when questions of intricacy or difficulty occur. Such an application may be made e* parte, although it is deemed the better practice to give notice to all parties in interest in the estate or fund. And a receiver acts at his peril where he assumes to determine, as between different claimants to the fund in his possession without seeking the advice of the court.”

It may be said that the question as to who the receiver should vote for as directors of 'the American and British Manufacturing Company is neither one of intricacy nor difficulty. It may be postulated that it is not one of intricacy, and, I may say, that it presents little, if anything, m the way of difficulty. And where there is neither intricacy nor difficulty, there is, I take it, no suitable occasion for application to the court. The question here is simply one of sound business judgment on the part of the receiver. And if it were not for the fact that the New York court in its opinion -very pointedly suggests that the New Jersey receiver should be permitted to vote the stock subject to the instructions of this court, I would be inclined to hold that the receiver should exercise his best judgment, and that he did not need the direction of the court as to the gentleman whom he should select. However, as the New York court has extended the power to the New Jersey receiver by the rule of comity which prevails between the courts of different states, where there is a conflict of laws, and has at the same time invoked the rule of comity by this court in seemingly limiting the domestic receiver’s power to be subject to the instructions of this court, I should, I think, return comity for comity.

The New York receiver, responding to the motion for directions, has applied to me to instruct the New Jersey receiver to vote for him, Mr. Kidder, as one of the directors to be chosen, so that he, while representing all parties in interest generally, may, in particular, represent the interests of the New York creditors, for whom he is acting as receiver. '

In Weeks v. Weeks, 106 N. Y. 626 (at p. 631), it was held: “The receiver is the officer of the court. In virtue of its general jurisdiction, the court in a proper case assumes for the time being the care and custody of the property. The receiver represents all interests, and under the direction of the court manages the property for the benefit of all concerned.”

In People, ex rel. Attorney-General, v. Security Life Insurance Co., 79 N. Y. 267 (at p. 270), it was held:

“Since the receiver is an officer, or, as he is sometimes called, The hand’ of the court, it’ would be singular if he could not at any time go to it with his complaint or for instructions in regard to any matter touching the fund placed in his custody. * * * He is not to advocate the cause of one claimant against another — between them he is indifferent, owing a like duty to all —and for that reason should, as far as possible, see to it that each has an equal opportunity to enforce his claim. He stands as their representative and is bound to give them reasonable hid.”

The principle enunciated in these two cases (Weeks v. Weeks and People, ex rel. Attorney-General, v. Security Life Insurance Co.) is one of universal application. There are conflicting interests in the case at bar, and there has been sharp litigation concerning them in the courts of New Jersey and New York. It would be singular, indeed, if an impartial court did not, in these circumstances, direct its receiver to give minority representation in the board of directors.

'In the brief handed in on behalf of the New York receiver, it is said that he is a stockholder of record of the American and British Manufacturing Company, and yet this fact is not stated in his affidavit submitted on the motion. In the brief it is also said that under the laws of New York a-stockholder of record is eligible to qualify as a director. The American and British Manufacturing Company is a corporation 'organized under the laws of Newr York, and I take it that eligibility for directorship must be-governed by the laws of that state.

• I am clearly of opinion that I ought to direct the receiver to give the New York stockholders representation on the board, and, to that end, those stockholders may select the name of a director for whom the New Jersey receiver will be instructed to vote. He may select any four of the five gentlemen named in his petition who, together with the director named by the New York stockholders, will make the full complement of five to be elected;, and for whom the New Jersey receiver will be authorized and directed to vote. The parties may apply for further directions if occasion shall require.


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    In the matter of Hannah Frankish, found to be a lunatic.
    [Decided July 19th, 1916.]
    1. Formerly counsel fees were not allowed by the court of chancery in lunacy proceedings, except the nominal statutory retaining fee which was taxed in the bill of costs; but now, by virtue of P. L. 1910 p. 427, counsel fees may be allowed by the chancellor to counsel for the petitioner and also counsel for the alleged lunatic, if he makes defence by counsel, as he may lawfully do, as a decree of lunacy is made for the benefit of the lunatic, and he, therefore, as well as the petitioner, is a party obtaining the decree.
    2. Under the act of March 23d, 1887 (Comp. Stat. p. 2784 § 3d), it is proper to allow commissioners in lunacy a reasonable per diem for their services; and under this statute it is lawful to allow the jurors who may be summoned the same compensation as was allowed jurors in the circuit courts at the time of the approval of that act, which was $2.00 per diem, and as P. L. 1915 p. 154, raising the pay of jurors in certain courts to $2.50 per day, does not relate to jurors summoned in lunacy inquisitions, their compensation is restricted to that allowed by the act of 1887. *
    3. There being no authority for taxing fees for constables attending on a jury in lunacy proceedings, nor for fees for stenographers attending and taking the testimony,' such charges are not lawful and cannot be included in the taxed bill of costs.
    On application for counsel fees, costs and expenses.

      Mr. Wilierl V. Pike, for the petitioner.

      Mr. Ernest L. Bartelt, for the lunatic.
   Walker, Chancellor.

Hannah Frankish, of the borough of Collingswood, Camden county, was, upon inquisition, found to be a lunatic, and a decree of lunacy, confirming the proceedings, was duly made, in which it was ordered that the clerk of this court transmit to the orphans court of the county of Camden a certified copy of all .the proceedings agreeably to the statute.

Application is now made for the allowance of counsel fees to the solicitor of the petitioner, and to counsel who appeared for the lunatic, and commissioners’, jurors’, stenographer’s and constable’s fees to be included in the taxed bill- of costs. The jurors found that the subject of the inquisition was seized of certain lands in this state, the issues and profits of which were of the yearly value of $168, and that she was also possessed of personal estate amounting to $981.51, cash on hand and in bank.

Where the estate of a lunatic is small, the court will do what it can to avoid expense. See Matter of Child, 16 N. J. Eq. 498.

In re Farrell, 51 N. J. Eq. 353, Chancellor McGill observed (at p. 360) that the end of lunacy proceedings is reached when lunacy is found, and the mere fact that such proceedings were had under, the court’s control cannot give it jurisdiction over either the guardian or the lunatic’s estate. He held further (at p. 361) that the legislative purpose found-in the act of March 23d, 1887, was to provide more liberal payment to commissioners and jurors than the then existing law permitted, but that it was by no means clear, that its purpose was also to confer upon the court a right to reach out and seize the estate of a person who is adjudged to be of unsound mind.

Formerly, counsel fees were not allowed by this court in these proceedings, except the nominal retaining fee which was taxed in the bill of costs. I do not say that counsel fees were not formerly allowable in this class of cases. Guardians of lunatics may have paid them and received allowance therefor upon accounting.

In Conover v. Conover, 15 N. J. Law 420, the supreme court on certiorari, reviewing the action of the Middlesex orphans court on the question of the allowance of an account of guardians of a lunatic, observed (at p. 421):

“The fees for drawing writs, and all other proceedings in the court of chancery, are fixed by the fee bill. These services were included and charged for in the bill of costs.- If they were not, the orphans court should not have allowed for them. So, the various separate charges and allowances for solicitors’ and commissioners’ fees, and for tire sheriff’s, jurors’ and witnesses’ fees on the inquest, are, in my opinion, all improper. The- orphans 'court could not tax and settle the bill of costs on the commission orf lunacy. The accounting party ought to have produced and shown to the court a regular bill .of costs on the commission, settled and taxed by the proper officer of the court of chancery, embracing these various items; otherwise, they should not have been allowed.”

That case dealt exclusively with the taxed bill of costs.

^Formerly, twenty-four jurors were summoned in lunacy proceedings, and they were allowed twentj^-five cents each. The authority for this may be found in the fee bill (Comp. Stat. p. 2288), where provision is made for such a sum to be paid to every juror in each action on which he is sw.orn, including a writ of inquiry and coroner’s inquest, but is it provided that fees paid by virtue of that section shall not be taxed in the bill of costs? However, I apprehend that that was the authority for the twenty-five cents dole to each juror in an inquiry under a commission, in the nature of a writ de lunático inquirendo. Whether the twenty-five cents was a per diem, or to be in full for services in the given matter, even if more than one day was occupied, may be a question, for the very same section provides that in certain cases, other than those I have mentioned, the jurors shall be paid a certain sum for each day, but does not make similar provision with reference to the twenty-five-cent allowance. However, fees of jurors in lunacy inquisitions are now provided for in the act of March 23d, 1887 (P. L. 1887 p. 48) , and which is section 3d, Comp. Stat. p. 2784 That section provides that it may be lawful for the sheriff in all cases of lunacy to summon twelve, instead of twenty-four, jurors, whose verdict, when found, shall, be as legal and binding as if found by twenty-four jurors, and that it shall be lawful fox the chancellor to allow to the master and to the other commissioners such compensation as may be reasonable and proper, and to the jurors who may be summoned the same compensation as then allowed by law to. jurors in the circuit courts; the sum to be paid out of the estate of the person who is the subject of the inquisition.

The provision that the verdict of a twelve-men jury shall be as legal and binding as if found by twenty-four, does not mean that the twenty-four jurors had to concur in the finding. As a matter of fact, the commissioners issuing the precept to the sheriff, in the case before me, required the sheriff to cause eighteen good and lawful men to appear before them.

In Lindsley’s Case, 46 N. J. Eq. 358, Chancellor McGill held (at p. 861) that at the adoption of the constitution, it was the practice to summon at least twelve, and not more than twenty-four, jurors to serve at lunacy inquisitions, and that no inquisition could be taken upon the oaths of less than twelve, and that a verdict concurred in by twelve out of an uncertain number was good, although the remainder refused to assent. And, Mr. Justice Dixon, speaking for the court of errors and appeals, in De Hart v. Condit, 51 N. J. Eq. 611, observed (at p. 613) that in practice any number not less than twelve nor over twenty-three has been considered adequate; that in Ferne’s Case, 5 Ves. 450, there were seventeen; in Dey’s Case, 9 N. J. Eq. 181, twenty-three, and in Vanauken’s Case, 10 N. J. Eq. 186, twenty-one jurors sworn. Therefore, as I have said, it was lawful to summon eighteen jurors, as was done in this case. But the practice is not to be commended; especially so in a case where the property of the subject of the inquisition is of no greater value than in this case. Counsel who advised the commissioners to issue the precept for eighteen jurors must have known of the meagreness of the lunatic’s estate, and'he should have advised the issuing of a precept for twelve.

Although Chancellor Magie (In re Comfort, 63 N. J. Eq. 377) remarked (at p. 378) that in his judgment the act of March 23d, 1887, did not require the commissioners to issue their precept for twelve instead .of twenty-four jurors, nor require the sheriff to summon the smaller number, I take it that he did not mean to intimate that the sheriff could override the commissioners and return a greater or less number than they required of him; nor do I believe that the commissioners could act independently of an order of the court in respect to the matter. The commissioners and the sheriff are officers of the court, and I think the court has the power to control what would otherwise be their discretion, at least, discretion in the commissioners, with reference to the number of jurors to be summoned.

In the case under consideration, iwo days’ time was consumed in taking the inquisition, and the sheriff has made a charge for two clays’ service for each of the eighteen jurors, at $2.50 per day, making $90. Under the old practice, this charge would have been $6 for twenty-four jurors, or $12 for two day's’ service, if, in fact, the fee was twenty-five cents per day and not for the entire service.

Now, it is to be observed that the act of March 23d, 1887, does not restrict the allowance of the same compensation as then given by law in the circuit courts, to panels of twelve only in lunacy proceedings, but, after providing that the jury may consist of twelve or twenty-four, goes on to provide .that the chancellor may allow to the jurors who may he summoned the same compensation as then allowed to jurors in the circuit courts. The sum then allowed in the circuit courts was $2, and not $2.50, per day. Comp. Stat. p. 2964 § 3. It was not until 1915 that the pay of petit jurors was raised to $2.50 for each day’s attendance at court. P. L. 1915 p, 154• There is nothing in this act which relates to the pay of jurors summoned on lunacy inquisitions, and as the act of March 23 dj 1887, expressly restricts their compensation to the per diem then received in the circuit courts, that sum, namely, $2 per day, is still the maximum of their compensation in these proceedings. I say maximum because the statute of 1887 provides that the chancellor may, not that he shall, allow to the jurors who may be summoned in lunacy proceedings the same compensation as then allowed in the circuit courts. I do not understand that I have any option to make an allowance of any sum between twenty-five cents and $2, but that it must be either the one or the other, and, as the practice has been uniform to tax $2 for each juror, when twelve men were summoned, I would not feel inclined to make an allowance of twenty-five cents only at this late day, and, besides, twenty-five cents is an inadequate fee.

Now, as to counsel fees: As already remarked, formerly nothing more than the nominal statutory retaining fee was allowed by this court and taxed in the bill of costs. The legislature, however, 1910 (P. L. 1910 p. 427), enacted that in any cause, matter or proceeding in chancery, the chancellor may make such allowances by way of counsel fee to the party or parties obtaining the order or decree, as shall seem to him reasonable and proper, and shall direct which of the parties shall pay snch allowances; or where they are ordered to be paid out of property or funds, shall specify and direct the property or funds liable therefor, and may provide for the inclusion of such allowances in the taxable costs, or may provide for their collection in such other manner as is agreeable to the practice of the court. It is to be observed that there is here no provision for allowance to counsel for parties other than those who obtain an order or decree. This act of 1910 is an amendment to section 91 of the Chancery act, which was construed by Vice-Chancellor Grey and Chancellor Magie in McMullin v. Doughty, 68 N. J. Eq. 776; affirmed by the court of errors and appeals (at p. 782). It was there pointed out that the provision was for the allowance of a counsel fee to the successful complainant, and under the act of 1910, there can be no allowance for counsel participating in the cause who does not take, or who is not at least included in, the order or decree, and whose client does not get a substantially favorable result.

There can be no doubt of the right to make allowance by way of fee to tire counsel for the petitioner in this matter, for, on her petition alleging the subject of the commission to be a lunatic, that person has been found and adjudged so to be, in appropriate proceedings and by a decree entered for that purpose.

A decree in lunacy is for the benefit of the alleged lunatic and is for his protection and thai of his estate. This is adverted to In re Farrell, supra (at p. 362). A stranger cannot sue out a commission in the nature of a writ de lunático inquirendo. In re Covenhoven, 1 N. J. Eq. 19. Only relatives who’ are interested in the welfare of-the lunatic may do this.

As the consequences of a finding of lunacy against a man deprive him of the control of his property, and may also deprive him of his personal liberty, no verdict is permitted to pass against him unless he is afforded opportunity for defence, and he has the right to be present at the execution of the commission to make defence and examine witnesses, in person or by counsel. In re Vanauken, 10 N. J. Eq. 186, 190.

Kow, as stated, the subject of the inquisition may make defence against the charge, and that was done in this case, Mr. Bartelt appealing for the woman found to be a lunatic. The decree, as already intimated, is made for the benefit of the lunatic, being for the protection pf herself and her estate. Counsel representing her is, therefore, as mueh entitled to an allowance as counsel for the petitioner. Each counsel will be allowed $50.

The lunatic’s solicitor presents a bill for a stenographer for $20 for services for two'days, being, apparently, the usual $10 per diem of official court stenographers. In fact, the stenographer is the official stenographer of one of the courts of this state. There is, however, no provision, statutory or • otherwise, for the allowance of such a bill. The Chancery act (Comp. Stat. p. 408) provides, in section 98, that it shall be lawful for each vice-chancellor to employ a competent stenographic reporter to take down the evidence of witnesses examined before him for the use of the court and the parties, and section 106 makes the same provision with reference to advisory masters. Sections 103 and 108 provide for the compensation of those official stenographers and how they shall be paid. Where they furnish copies to the court the cost is apportioned between the parties and included in the taxable costs. There is, however, no statute, or other authority, for commissioners in lunacy to employ stenographers to take testimony, and if the partiés have the evidence so taken, it must be at their own costs and charges. It may be very convenient to have a stenographic report of the testimony in case the inquisition is sought to bé set aside as against the weight of the evidence, as may be done. In re Lawrence, 28 N. J. Eq. 331. But, as already remarked, there is no method for taxing stenographer’s fees in the bill of costs in these proceedings. The same is true as to constable’s fees, a charge of $6, for which is included in the sheriff’s bill.

In Smith v. Williamson, 11 N. J. Law 313, it was held that a charge for constable’s fees for attending on the jury in an action of forcible entry and detainer was not a legal charge, as there was no such item in the fee bill. The situation is the same here. In the fee hill (Comp. Stat. p. 2277) provision is made, in sections 28, 49 and 50, for the compensation of constables attending certain courts, and performing specified duties, naming them, but no provision is made for the payment of constables attending upon inquisitions of lunacy.

Chancellor McGill — In re Farrell, supra (at p. 368) — remarked that by the English statute the chancellor 'was authorized to allow costs and expenses out o-f the estate of the alleged lunatic, and provided as a means of giving effect to the order that it should have the same force and effect as one for the payment of money by the court of chancery. Such a statute has not been passed in this state, save so far as the act of 1910 (P. L. 1910 p. 427) enables the chancellor to provide for the collection of counsel fees allowed by him, in such manner, other than in the taxable costs, as may be agreeable to the practice of the court; the alternative being the allowance in the taxed bill of costs. If so allowed, they are to be collected as are the other items in such bill, namely, in lunacy cases they are paid by the guardian when appointed by the orphans court, who will have an allowance therefor on his accounting in that tribunal. Conover v. Conover, supra. Chancellor McGill — In re Farrell, supra (at p. 360) — speaking of our law upon the subject, remarked that it has been the practice, when lunacy is found, as part of the proceedings, to have the costs taxed in chancery and certified to the orphans court in anticipation of their being paid out of the lunatic’s estate by the guardian when appointed.

The costs had been taxed in this case when the present application was made, which is, in effect, one for re-taxation. The decree of lunacy awarded the master commissioner $10, and the other two, $5 each. This was, doubtless, upon the theory of one day’s service. Counsel seemed to think that the commissioners are entitled to a per diem, whatever the allowance may be. I am free to say that that would have been an entirely proper method of compensation, but it is not required. The act simply provides that it shall be lawful for the chancellor to allow such compensation as under the circumstances may be reasonable and proper. I think, however, that $10 per day for the master commissioner and $5 for each other commissioner is little enough, and that it would be unreasonable to withhold from them two days’ compensation at that rate, respectively, when they were that long engaged on the inquiry. Therefore, instead of the $20 taxed, an allowance will be made of $40.

The return ■ was signed by the eighteen jurors summoned. The clerk taxed $24 for jurors’ fees, which was $2 per day for twelve men. I have the alternative of allowing $2 per day each, or the inadequate sum of twenty-five cents each, or, perhaps, twenty-five cents per day each. Even though the estate is small, I shall not hesitate to allow the jurors $2 per day each for two days, making $72 in all. The sheriff appears to have actually paid the jurors' $2.50 per day, or $90 in all, but the excess over $72 cannot be allowed.

The stenographer’s and constable’s fees must be disallowed, for reasons given above. Each counsel was engaged two days in the inquiry, and, of course, devoted time to the preparation of the case before the commission was executed. I cannot very well allow less than $50 to each counsel, to be taxed in the bill of costs, and that will be the order. The clerk will re-tax the bill to the extent and in the amounts above indicated.

Hereafter commissioners in lunacy will be directed in the order appointing them to require the sheriff, in their precept, to return twelve jurors only. No embarrassment will arise from this, for, should all twelve not answer, talesmen can be summoned as in other cases.


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    Horace Brown et al., infants, by next friend, v. Willard M. Garton et ux.
    [Decided July 31st, 1916.]
    Partition is a matter of right only when the complainant is sui juris. No one has a right to file a bill for partition as next friend of an infant unless it is made to appear upon the face of the Kill that partition or sale of the premises would operate for his benefit; and, if such allegation be made, the reference master will be required to take testimony and report whether or not' such partition or sale would operate to the benefit of the infant complainant.
    On application for order of reference.

      Mr. George M. Bacon, for the complainants.
   Walker, Chancellor.

The bill is for partition, or sale if actual partition should be found to be impracticable. The complainants are Horace Brown, an infant of the age of seventeen years, and John Brown, an infant of the age of eleven years. The bill was preferred and filed by Della C. Dare, as their next friend. It avers that the complainants are each seized of, and entitled to, one-fourth part of the premises, and that their uncle, Willard M. Garton, is seized of the remaining one-half. He and his wife are the only defendants. Process of subpoena was issued and returned duly served upon the defendants, who have not answered, and application is now made for an interlocutory decree and order of reference to a special master to ascertain and report upon the right, title and interest of the respective parties in the premises, and whether the lands and real estate described in the bill are so situate that a partition thereof can be made without great prejudice to the owners, and -in case such partition cannot be made, then to ascertain and report whether in case of sale of the premises the inchoate right of dower of Gar-ton’s wife should be sold, &c.

There appears no justification for Della C. Dare having filed this bill on behalf of the infant complainants, and, therefore, the application for a reference to a master will be denied.

While the court of chancery has inherent power, irrespective of statute, to change the character of property in which infants are interested, it will only exercise that power for the benefit of the infants. Day v. Devitt, 79 N. J. Eq. 342.

The act relative to the sale of infant’s lands (Cormp. Stat. p. 2804 § 1) provides that whenever an infant shall be seized of any lands or entitled to any term to come, and it shall be represented to the chancellor on behalf of the infant by his guardian or next friend, that his interest requires that the lands or term should be sold or disposed of, the chancellor may in a summary manner proceed to inquire into the merits of the application, &c. This statute, it will be seen, embodies the provision that always obtains when infants are concerned, namely, whether their interests require that the contemplated action shall be taken.

Section 68 of the act concerning partition (Comp. Stat. p. 3915) provides that whenever a petition shall be presented to the orphans court, by the guardian of an infant tenant in common, from which it appears that the adult parties in interest have divided, or agreed to a partition of,, their real estate, and the interest of the infant is such that an actual partition can be made without a sale and without detriment to the interest and right of the infant, it shall be lawful for the orphans court to hear the application in a summary manner; and, by section 69, if satisfied from the testimony that the proposed partition is not detrimental, but that it is to the interest of the infant to hold his share separate and apart from the other tenants in common, to make an order empowering and directing the guardian to execute and enter into such mutual agreements, deeds, releases and conveyances between the parties as may be necessary and as shall be confirmed by the court. Here, again, we have a legislative declaration that an infant’s lands shall not be partitioned unless it be’ for his benefit. Nor is there anything in section 9 of the Partition act which provides that it shall and may be lawful for the orphans or prerogative court, in certain cases, to order and direct a division of real estate to be made between the owners thereof where any one or more of them are minors under the age of twenty-one years, which abrogates the doctrine that the interest of an infant is to be jealously guarded —especially when another institutes proceedings in his name and ostensibly on his behalf. Of course, when an adult brings partition, the presence of an infant defendant will not operate to defeat the suit by reason of minority .alone, no matter how detrimental to the infant’s rights, in such a situation, an actual partition, or sale in lieu thereof, may be.

In Freem. Part. § 457, it is laid down:

“But ddubtless an application for partition is not, when made by or on behalf of an infant cotenant, to be granted, as in case of an adult cotenant, as a matter of course. An adult has, when not fettered by special obligation existing independent of the cotenancy, an absolute right to partition; and the court to which,the application is properly presented has no authority to consider whether the further continuance of the cotenancy would prove more or less advantageous than a partition. But the protection of infants is one of the duties with which courts of equity are specially charged. When the court to which an application for partition is presented on behalf of an infant is a court of equity, or one authorized in matters of partition to exercise a chancery jurisdiction, it not only may but ought to inquire whether the proposed partition will operate to the prejudice or to the benefit of the infant petitioner; and if, as the result of such inquiry,, the conclusion reached is that the partition will not prove beneficial, it ought to be denied.”

In Miller v. Fanning, 211 Ill. 620, the court observed (at p. 621):

“Such imperative right (to partition) is, however, limited where part of the estate is owned by infants. The protection of infants and their estates is a duty enjoined upon courts of equity whenever their jurisdiction is invoked on their behalf or for the protection of their property. "When a court of equity is called upon by a'bill to partition lands in which infants are interested, it is the duty of the chancellor to ascertain whether the partition will result beneficially to such infants or to their detriment, and if it will not be for their best interests, partition should be denied.” *

In New York it appears that the right to partition in the case of infants is made to depend upon the consent of the surrogate, and the court must be satisfied that the interests of the infant will be protected by the judgment awarding partition. Thompson v. Hart, 58 N. Y. App. Div. 439; affirmed, Same Case, 169 N. Y. 571.

"We are not without adjudication on this question in our own state. In Tomkins v. Miller, 27 Atl. Rep. 484, Vice-Chancellor Bird observed:

“I cannot see my way clear to advise a decree directing the sale or partition of these lands, * * * there being infants in the case for whom this court must assume responsibility of acting. I cannot take such responsibility. There is nothing in the case to warrant me in believing that it would prove beneficial to them (the infants). ' Without such evidence the court would not be justified in taking the step prayed for.”

The bill in the case before me will be dismissed unless within fifteen days the complainant amends by satisfactorily showing that the partition would be for the benefit of the infant complainants; and, if such an amendment be made, the facts will have to be proved before the master, who will be required to report particularly whether or not it would be for the benefit of the infants to have the land partitioned or sold. The present application for an order of reference will be denied.


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    Nicholas Garrett v. Anna Garrett.
    [Decided July 19th, 1916.]
    1. It is an inflexible rule in this state that a divorce will not be granted upon the uncorroborated testimony or admission of a party to the suit. Not only does this apply to the cause but to every element in the proofs necessary to sustain it.
    2. A defendant’s confession of guilt in a divorce case is not such evidence, as, by the law of this state, will support a decree.
    3. A defendant’s confession of guilt in a divorce case, to be evidence, must be corroborated as to the fact or facts confessed and not as to the confession being made.

      4. As a decree cannot be granted upon the uncorroborated testimony of the petitioner, nor upon the defendant’s uncorroborated confession, it follows that such uncorroborated testimony, plus such uncorroborated confession, amount to no more than each standing alone, and are insufficient and not legal evidence. While both are admissible in evidence, each much be corroborated in order to be effective as evidence in the cause.
    5. While there are instances when counsel cannot avoid testifying on behalf of his client, as where the facts are so peculiarly within his knowledge that his evidence becomes a matter of necessity in order that justice may be done, nevertheless it is a matter of impropriety for a solicitor to seek an interview with, and secure a confession from, a defendant, and to testify to that confession on behalf of his client.
    On exceptions to master’s report.

      Mr. Charles E. Hendrickson, -Jr., for the petitioner and ex-ceptant.
   Walker, Chancellor.

The petitioner sued for divorce from his wife on the ground of adultery alleged to have been committed by her on October 12th, 1913, with a man- named Preddie, at No. 128 West One Hundred and Thirty-ninth street, in the city and State of New York. The defendant did not answer, and the master to whom the cause was referred reported adversely to the petitioner, who filed three exceptions to the master’s findings.

The first exception is to the report by the master that it was proved to his satisfaction that the petitioner and defendant lived together as husband and wife in Troy, and also in the city of Eew York, from the time of their marriage until the petitioner left the defendant because he suspected her of being unduly intimate with Preddie, the date of which he appeared to be unable -to fix — even the year in which he left her not being remembered by him — four or five years before was the nearest he could come to it.

The ground of objection to this much of the report is that it appears by the deposition of the petitioner that he left his wife about four years before because he found out that she was not true to him, saying elsewhere that he did not remember the .month and that it was about six years before. He said he thought it was about a year after they separated that he met his brother-in-law, who told him that she (the petitioner’s wife) was living with Preddie at Eo. 138 West One Hundred and Thirty-ninth street, Eew York City; that he went there and found out that it was true; that he went there, saw her personally and asked if she was living with Preddie, and she. said that she was, and did not want people to know that she was living the way she was; that she did not want people to know that Preddie was not her husband.

Nothing of a controlling character is involved in the question presented by this exception. It may be dismissed with the assertion that it is the petitioner’s uncorroborated testimony.

And it is an inflexible rule in this state that a divorce will' not be granted upon the uncorroborated testimony or admission of a party to the suit. Not only does this apply to the cause, but to every element in the proofs necessary to sustain it. Williams v. Williams, 78 N. J. Eq. 17; Hague v. Hague, 35 N. J. Eq. 537.

The second exception is to the finding of the master that it was not proved that the defendant committed adultery with Preddie at the time and place alleged in the petition, although it was proved to his satisfaction that the defendant committed adultery with- Preddie at that address in the month of November following, and that she was then living with Preddie as his wife at the same place. As ground for this exception the petitioner insists that it appears by the deposition of his solicitor that the defendant admitted to him that she went to live with Preddie about five years before the deposition was taken, and said that she had lived with him ever since^ which showed that she was living with Preddie in October, 1913, and that the master should have reported that she committed adultery with him on the date alleged in the petition.

At best for the petitioner, the evidence of his solicitor merely recites the confession of a guilty wife, which, in and of itself, is not sufficient groundwork upon which to rest a divorce. A defendant’s confession of guilt in a divorce case is not such evidence as by the law of this state will support a decree. Howard v. Howard, 77 N. J. Eq. 186. Such confessions, to be evidence, must be. corroborated, as to the fact or facts confessed, and not as to the confession being made. Kloman v. Kloman, 62 N. J. Eq. 153, 156. The’solicitor’s deposition relates to a conversation he had with the defendant who called at his office in response to a letter from him and introduced herself, and, in answer to questions propounded by him, made a detailed and circumstantial confession about leaving her husband and going to live with Preddie, all of which the solicitor repeats in his deposition.

Now, as a divorce cannot be granted upon the uncorroborated testimony of the husband as to his wife’s guilt, nor upon her uncorroborated confession of that guilt, it follows necessarily that the uncorroborated testimonj1', plus the uncorroborated confession, amount to no. more than each standing alone, and are not legal evidence. True, both the testimony and the confession are admissible in evidence, but each must be corroborated in order to be effective as evidence in the cause.

There is nothing in the recent case of Hague v. Hague, supra (court of errors and appeals), which militates against this view. In that case, as in Schaab v. Schaab, 66 N. J. Eq. 334, the defendant was subpoenaed as a witness and examined on behalf of the petitioner. These were divorce cases, but what the defendants said under oath which went to prove the petitioners’ case amounted to confessions of guilt made under oath. In each of these cases a divorce was denied in the court of chancery and that court’s decree in each was reversed. These reversals^ however, were not based upon any ruling that the testimony given bj the defendants alone and without corroboration was sufficient. On the contrary, an examination of each of these cases shows that the testimony given by the defendants was corroborated. In the Hague Case, in the syllabus written by Mr. Justice Trenchard, who delivered the opinion of the court, it is laid down that the wife’s testimony was corroborated by that of her husband and another witness,' and quotations from the evidence are made in the body of the opinion for the purpose of justifying the statement made in the syllabus. In the Schadb Case it was stated by Mr. Justice Fort, who wrote the opinion, that the defendant’s testimony was admissible, as to the facts and circumstances concerning which she testified, and that it was entirely corroborative of the testimony of the detectives. This being so, the testimony of the detectives was, of course, entirely corroborative of hers. The law to be deduced from the cases on the question before me is, that defendants in divorce cases may be called as witnesses by the petitioners, but that their testimony is insufficient for the granting of a divorce unless corroborated as to the fact or facts confessed.

The third objection, complaining that the master reported that, as it was decided by this court in Rapp v. Rapp, 67 N. J. Eq. 236, desertion by the husband which' existed during the period fixed by the statute as ground for an absolute divorce, appearing by his own testimony, was a bar to a divorce against the wife for subsequent adulteiy, though not so pleaded, he, the master, was constrained to report that the petitioner was not entitled to the relief prayed for in his petition and that it should be dismissed.

The argument made against this finding and recommendation is, that the petitioner has sustained the allegations of his petition and that it appears from the depositions that the petitioner deserted the defendant because she was misconducting herself with Preddie and living in open adultery with him and continued so to do down to the time of the taking of the deposition, and that the petitioner was therefore justified in leaving her, and, besides, that he could not bring suit for divorce in New York, on the ground'of adultery because he resided in New Jersey, and could not bring suit in New Jersey on the ground of desertion until two years after he had resided here, and that the cause for action for adultery was' complete, and because the evidence clearly showed that there was no legal desertion by the petitioner, as he was justified in abandoning his wife because of her living in adultery with Preddie.

' It is not necessary to consider the matters raised in this exception, because of want of legal proof of the cause for action laid in the petition. In other words, because neither the petitioner’s story nor the wife’s confession is corroborated. I will devote a short space to demonstrating the fact to be as I have declared.

The only witnesses in the case were the petitioner, John B. Cole, John H, Butler and the petitioner’s solicitor. Corroboration, therefore, must be found, if at all, in the testimony of Cole or Butler. It is already shown that the solicitor’s testimony simply went to the fact of the confession being made, not to the facts said in the confession to have occurred.

Cole testified, aside from some unimportant matters, that he knew the defendant, had met her once. This was when he delivered papers to her that the solicitor gave him to put in her hands, a copy of the petition for divorce and a notice to appear. This was at No. 128 West One Hundred and Thirty-ninth street, New York. On a later occasion he went there again, accompanied by the petitioner and Butler; that he rang the bell and the defendant met them in the hall on the ground floor; that he asked her if she was Mrs. Preddie, and she replied that she was; that he’ asked her if she could recognize him and she said yes, he was over some time before to serve papers and she thought the thing had gone through, that was the reason she did not make any answer, that she was willing to let it go through. The witness then asked her if she was Mrs. Anna Preddie, and she called her husband (not saying whether it was Garrett or Preddie) by his first name, and the witness asked her if he was her real husband and if they were living together, and she said, “I am,” meaning, of cour'se, “they were,” and meaning, also, doubtless, her and Preddie. If this interpretation is to be put upon the testimony, it amounted to no more than a confession by a wife in the presence of her husband, which is not legal evidence.

Butler, besides speaking of inconsequential matters, said he had been acquainted with the defendant three or four years, knew that she and her husband, .the petitioner, were living together in New York, at which time he saw the petitioner once or twice a month. The defendant was then living at No. 128 West One Hundred and Thirty-ninth street, he thought; that he knew she was living there because her name was on the bell (not-saying what the name was). He had been there to see her, was once in the place where she lived, went there with Cole as a witness, saw the defendant there. The petitioner and Cole went with him and the petitioner introduced Cole to the defendant in his presence; that she goes under the name of Mrs. Preddie; that the petitioner introduced his wife to 'Butler and to Cole.

It is to be inferred from Cole’s testimony that the defendant was living separate and apart from the petitioner. This, of itself, means little or nothing. Her assertion to Cole that she was living with Preddie was only her confession once more repeated. Butler’s assertion that he knew that she was living at No. 128 West One Hundred and Thirty-ninth street, New York, because her name was on the bell does not say what name, Garrett or Preddie. Butler’s going to the place with Cole and the petitioner when the latter introduced both Cole and Butler, apparently, to the defendant, does not, in the meagre facts testified to, amount to anything of value for the petitioner. Butler’s assertion that the defendant went under the name of Mrs. Preddie is hearsay, so1 far as the proof shows. However, the petitioner being present at the interview spoken to vitiates the testimony as will presently be shown.

In Palmer v. Palmer, 22 N. J. Eq. 88, Chancellor Zabriskie took occasion to regret that counsel and the master both saw fit to disregard the rule to take down the testimony in such manner that it might appear whether the facts sworn to were within the personal knowledge of the witness or not. His observations in this regal’d are particularly apposite in the ease at bar. The same rules apply to the testimony in undefended divorce cases as in all other cases. Topfer v. Topfer, 68 Atl. Rep. 1071. The meagre and apparently hearsay testimony above mentioned may not be held as corroborating the complainant’s case. In fact, I think I would be justified in saying that it could not be distorted into the corroboration which the law requires.

There is, however, the controlling impediment of the husband’s presence when the wife made her statements to Cole and Butler, Such a confession is presumed to be procured by his coercion and does not afford a basis upon which to build and support a charge of adultery. Summerbell v. Summerbell, 37 N. J. Eq. 603.

The testimony adduced in this case, if believed, and I see no reason to doubt its truth, shows that the petitioner has a meritorious case. The trouble with it is, as shown above, the testimony upon which it is rested is not legal evidence. I am willing, however, to open the matter and afford the petitioner an opportunity of proving his case. If his wife is, an*d has been for years, living in open adultery with Preddie in New York, it seems that it ought not to be difficult to prove the fact, and the time of its duration which, in turn, would cover the date pleaded in the petition.

There appears in the record in this case a matter which I do not feel at liberty to disregard and to which I am constrained to allude, and that is, the petitioner’s solicitor procuring a confession to be made to him by the defendant and becoming a witness in the cause and detailing the confession in his testimony.

In Thornt. Attor. L. it is laid down in § 190:

“As a mere matter of propriety, an attorney should not testify on behalf of his client, in a ease wherein he appears as counsel. The practice, or habit, of so doing deserves, and has received, severe condemnation. It is recognized, of course, that there are instances where counsel cannot avoid testifying on behalf of the client, as where facts are so peculiarly within his knowledge that his evidence becomes a matter of necessity in order that justice may be done.”

And the cases cited in the notes amply justify the strictures of the author.

The chief-justice of Delaware, sitting for the chancellor, in Real Estate Trust Co. v. Wilmington, &c., Electric Co., 9 Del. Ch. 99, in sustaining the competency of an attorney, who was of counsel for one of the. parties, to prove an admission of the adverse party, took occasion to observe (at p. 76):

“The testimony given by Mr. Ward was not a confidential communication from client to counsel. It was not even upon a controverted point, neither did it touch the. merits of the case in any way. It was simply the service of a formal notice. As was said by the court in the case -of Crooks v. Purnell, the act proposed to be proved did not, partake in any degree of the character of a confidential communication between counsel and client. It was rather an act done, or step taken, in the cause by the counsel for the plaintiff.”

There is no question of confidential communication involved in the case at bar, and Real Estate Trust Co. v. Wilmington, &c., Electric Co. is cited only to the point that courts look with disfavor upon counsel testifying for clients on the merits or on controverted questions in a given cause.

It will be seen at a glance that the solicitor’s testimony does not fall within any of the exceptions which admit of the propriety of his being a witness in behalf of his client. lie should not have testified.

The views above expressed lead to the overruling of the exceptions. The petition will, however, be dismissed, but for the reasons above stated and not those given by the master — unless the petitioner, within fifteen days,-applies to open the case for the purpose of taking testimony to prove his cause for' divorce.