text:
    Trenton and Mercer County Traction Corporation and Trenton, Pennington and Hopewell Street Railway Company, complainant-respondent, v. Inhabitants of Township of Ewing et al., defendants-appellants.
    [Submitted March term, 1919.
    Decided June 15th, 1919.]
    1. Where a municipality was required by law to consent to the location of a street railway by ordinance “and not otherwise,” and did so consent by ordinance, but the street railway located a switch on the public highway at a place not authorized by the ordinance, twelve years’ acquiescence by the municipal authorities will not constitute an estoppel as against the public.
    2. The public authorities are not barred by laches in such a case.
    3. Where a railroad switch was constructed upon the public highway without right, the nuisance may be- abated by the municipality.
    On appeal from a decree of tlie chancellor reported in 87 N. J. Eq. 897.

      Mr. George W. Macpherson and Mr. Frank Bergen, for the complainant-respondent.

      Mr. Malcolm G. Buchanan, for the defendants-appellants.
   The opinion of the court of delivered by

Swayze, J.

The chancellor enjoined the township committee and the board of freeholders from removing a turnout known as Green’s switch from its location in a county road, and the township of Ewing and the freeholders of Mercer appeal. The rights of the street railway company rest on an ordinance of the township, of November 1st, 1902, consenting to the construction of the railway and fixing the location of the tracks. A map showing the location of tracks and switches accompanied the ordinance. The street railway company executed an agreement in accordance with the statute, by which it accepted the ordinance and all its provisions and covenanted with the township that the railway company and its successors should be bound to observe, keep,-and perform all the conditions, limitations, impositions, matters and things by the ordinance directed to be observed, kept and performed as a consideration to the enjoyment of the rights, privileges, franchises and licenses granted by the ordinance. The agreement added that it was the express intention to he bound by all the restrictions, limitations, and conditions of the ordinance. The railway was built in 1903; Green’s switch was not located at the point indicated on the map, but one thousand seven hundred feet away. No question arose until 1915, when the township and county authorities moved to take up the switch, and the present hill was filed. The bill sets forth the ordinance and agreement, but obviously these averments would not entitle the complainant to relief, since they failed to aver and could not prove that the switch was constructed at the point fixed. The bill charges that the railway was constructed by virtue of the ordinance “or other valid authority.” What that other valid authority was appears only in the answering affidavits. In those the claim is made that the township committee and the board of freeholders assented to the actual location of the switch. This assent seems to have been merely by Individual committeemen and freeholders, perhaps while the building of the road' was in progress, perhaps at a tour of inspection after completion-. No formal action is even claimed to have been taken; two of the three committeemen, all now living, deny any consent to the change of location on their part or as far as they know on the part of their colleague, ■ and the evidence of such consent is most meagre and unsatisfactory. At best, it. is no more than -failure to object on the part of committeemen and freeholders and it is not shown that they knew that the actual location was different from that prescribed by the ordinance. In the absence of proof, we cannot hold that they are to be charged with knowledge that a shift of one thousand seven hundred feet in the location had been made. A survey was necessary to reveal the fact. But even if they had known it, formal action was necessary and in view of the statutory -requirement that the clerk shall keep a record of the committee’s proceedings (Comp. Stat. p. 5577, placitum 14), the case is within the rule of West Jersey Traction Co. v. Camden Horse Railroad Co., 53 N. J. Eq. 163, 167. In the absence of proof of any resolution by the township committee, we must assume there is none, and that is conceded to be the.fact.

The complainant relies really upon the failure of the public authorities to object or to act for twelve years. Whether he chooses to use the term “estoppel” or “laches” is of no importance. The elements of an estoppel are not present since there is no proof that the railway company was induced to place the switch where it did by anything said or done, even by individual members of the committee, - although that would not raise an estoppel against the public. The municipality in granting the consent originally could act only by ordinance “and not otherwise” as the statute is careful to say. Comp. Stat. p. 5040•. This clearly forbids action by way of estoppel, which, if permitted, would nullify the statutory prohibition. It is, moreover, conclusive against the company that it did in fact act under an ordinance which fixed the location of the switch at a different point from the actual location. The company did not waive its right to maintain the legal switch. It contracted in solemn form to comply with the ordinance. If it has a right to maintain the present switch, it has a right to maintain four switches instead of three, as the ordinance says. Clearly no such claim is admissible and the result necessarily follows that the switch now in question is illegal. The estoppel claimed by the company applies to an original location of track, and this is required by the statute to be by ordinance “and not otherwise.” A subsequent change of location might be authorized by resolution, and there is no exclusion of other methods by express language; but if we assume that a subsequent change might be legalized by way of estoppel, that will not avail the street railway company, which does not claim that there was any such subsequent change of location as might.be authorized by resolution.

There remains only the suggestion that the public authorities are barred by laches. The law is settled- to- the contrary. Cross v. Morristown, 18 N. J. Eq. 305; Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken, 36 N. J. Law 540; Price v. Plainfield, 40 N. J. Law 608; Laing v. United New Jersey Railroad, &c., Co., 54 N. J. Law 576, 578; Jersey City v. Hall, 19 N. J. Law 559.

' The switch was constructed in the- public highway without ¡right and the municipalities were within their rights in abating the nuisance. It is of no importance that both parties were feting to the same end.

The decree must be reversed and the record remitted to the end that the bill may be dismissed. The defendants are entitled to costs in both courts.

For affirmance — Bergen, Black, White, Williams — 4.

For reversal — The Ohiee-Jtistice, Swayze, Trenchard, Parker, Minton, Kalisci-i, IIeppent-ieimer, Taylor, G-ard-


source: Caselaw Access Project

author: Trenchard, J.

license: Public Domain

text:
    Philip Hilton, complainant-respondent, v. Joseph Hilton, defendant-appellant.
    [Argued March 10th, 1019.
    Decided June 20th, 1919.]
    1. When a defendant has been enjoined from using in the clothing business the name of “Hilton” alone or in such a way as to lead the public to believe that his goods are the complainant’s goods, or his business is the complainant’s business, the question whether he has violated that injunction is one of fact. The test is whether the use by the defendant of the words in dispute is likely to deceive ordinary purchasers buying with such care as would usually be exercised in such transactions. A nice discrimination is not expected from the ordinary purchaser. Neither actual confusion nor actual fraudulent intent need be shown where the necessary and probable tendency of the defendant’s conduct is to deceive the public and pass off his goods or business as and for that of the complainant. Similarity, not necessarily identity, of name is recognized as a basis for relief.
    2. Where the complainant Philip Hilton had purchased of the defendant, Joseph Hilton, the lattea-’s ántea-est in the business, name anti goodwill of the clothing business of “The Hilton Company,” built up by both, by large expenditures in advertising, and the defendant, after establishing competing stores, had been enjoined from using the name “Hilton” aloné or in such a way as to lead the public to believe that his goods and business were those of. the complainant, the defendant was rightly adjudged gqilty of contempt, it appearing that his competing stores were near the stores of the complainant, which the latter had continued under the original name and advertised as such, and that the defendant had adopted as his trade name and for his signs the words “Jus. Hilton & Co.” and this is so even though, at the time of adopting such name, the defendant anticipated the formation of a partnership with his two sons and one Tennenbaum which was in fact .afterwards entered into.
    On appeal from an order o£ the court of chancery advised by Vice-Chancellor Lane, whose opinion is reported in 89 N. J. Eq. 'R7Z.

      Mr. Selide J. Mindes and Mr. Robert II. McCarter, for the anpellant.

      Mr. Waldron M. Ward and Mr. John B. Hardin, for the respondent. ■
   The opinion of the court was delivered by

Trenchard, J.

This is an appeal by the defendant from an order in an unfair trade case adjrrdging the defendant guilty of contempt for violation of the decree entered upon remittitw from this court, modifying in part, and affirming otherwise, the decree made upon the final hearing of the cause.

The complainant filed his bill November 18th, 1916, setting forth that, prior to June 24th, 1916, he and the defendant had been engaged as partners in- the clothing busine'ss under the name of “The Hilton Company;” that they had built up a large business in the city of New York, Brooklyn and other cities not now requiring mention; that, in the course of the conduct of the business, the partnership had used the words “Hilton” and “Hilton’s” alone and in combination with other words to designate and describe their merchandise, and as a trade name; that they had expended large sums in advertising the business under such trade names; that on-June 24th, 1916, the defendant had conveyed all of his right, title and interest in the partnership to the complainant, including all his right, title and interest to the name and good-will of the business; that complainant thereafter continued to conduct such business under such trade names in the same localities; that the business continued to be of large volume, and that the same general -methods of advertising were continued.

The bill also alleged that shortly before its filing defendant had begun a competitive clothing business in the city of New York and other localities, and was conducting such business under the trade name “Hilton’s.” The bill further averred, confusion and prayed relief.

After hearing, Vice-Chancellor Lane in his conclusions, which are reported in 89 N. J. Eq. 149, held that 'the use by the defendant of the trade name “Hilton’s,” in the manner it was used in connection with stores in close proximity to those of the complainant, could not but lead to confusion..and tend to injure the complainant in Iris business, and Ire therefore enjoined the defendant.

An appeal was taken and this court in an opinion reported in 89 N. J. Eq. 182, expressly and unqualifiedly held that “the evidence entitled the complainant to the relief prayed for,” but not exactly that granted in the court of chancery, and, accordingly, on remittitur, a decree was entered in the court of chancery on July 18th, 1918, enjoining the defendant, Joseph Hilton, “from using the name 'Hilton’s’ or 'Hilton/ alone or in such manner as to lead or induce the .public to believe that the goods manufactured or sold by him are manufactured or sold by complainant, and.that the business, conducted by defendant is the same as or a part of the business conducted by complainant, from using any emblem or device resembling the trade emblem of complainant in airy way in his business and from conducting his business so as to deceive the public and induce it to believe that the goods manufactured or sold by defendant were manufactured or sold by complainant and that the business conducted by defendant is the same as or a part of the business conducted by complainant.”

Following the service upon the defendant of this decree (according to the vice-chancellor), for a considerable time he conducted his business regardless of such decree (see opinion in first contempt proceedings, 89 N. J. Eq. 417), but later added to the word “Hilton’s” on his store signs the words “J. Hilton, Prop.” Then the complainant, on August 23d, 1918, instituted the first contempt proceedings. After hearing, the vice-chancellor adjudged the defendant guilty, but purged him of the contempt upon payment of costs and counsel fees, in view of his discontinuance of such signs after the commencement of the proceedings. But since no appeal was taken in that proceed-ing, we are not concerned with that except as it may throw light upon the good faith of the defendant’s conduct now in question.

The defendant then adopted as the style of his trade name the words now in dispute, “Jos. Hilton & Co.” His newspaper advertising under this name began in the latter part of October, and his new signs were put up in the latter part of November. .

The complainant filed his petition on December 23d, 1918, alleging the use of this name in the conduct of the defendant’s business in New York City and elsewhere, and praying that the defendant be adjudged guilty of contempt, and after hearing he was adjudged guilty.

The issue made by the petition and answer (to which the scope of the hearing was strictly confined), and now presented on this appeal, is whether the use by the defendant of the words “Jos. Hilton & Co.,” as the style under which he conducts his clothing business in competition with the complainant, leads or induces the public to believe that the goods manufactured or sold by him are manufactured or sold by complainant and that the business conducted by the defendant is the same as, or part of, the business conducted by the complainant.

We think that issue must be_ determined against the defendant. The rights of the parties were settled in general terms, by the final decree. Thereby the defendant was restrained from using the name “Hilton” in such manner as to mislead the public. Whether or not be has done so is a question of fact. The test is whether the use by the defendant of the words in dispute is likely to deceive ordinary purchasers, buying with such care as would usually be exercised in such transactions. Wirtz v. Eagle Bottling Co., 50 N. J. Eq. 164; Johnson v. Seabury, 69 N. J. Eq. 696; National Biscuit Co. v. Pacific Coast Biscuit Co., 83 N. J. Eq. 369. A nice discrimination is not expected from the ordinary purchaser. International Silver Co. v. William H. Rogers Co., 67 N. J. Eq. 646. Neither actual confusion nor actual fraudulent intent need be shown where the necessary and probable tendency of the defendant’s conduct is to deceive the public and pass off his goods or business as and for that of the complainant. International Silver Co. v. Wm. H. Rogers Corporation, 66 N. J. Eq. 140; Wirtz v. Eagle Bottling Co., supra; Rubber and Celluloid Harness Trimming Co. v. Rubberbound Brush Co., 81 N. J. Eq. 419; National Biscuit Co. v. Pacific Coast Biscuit Co., supra. Similarity, not necessarily identity, of names is recognized as a basis for relief. International Silver Co. v. William H. Rogers Corporation, 66 N. J. Eq. 119; 67 N. J. Eq. 646.

With these principles in mind'we turn now to the facts to which they must be applied.

It appeared that the business of the complainant, in which the defendant was formerly a partner, had been conducted for many years under the name “The Hilton Company that it was common practice in the advertising and other trade uses of the name to abbreviate the word “Company” to “Co.,” and that this alternate usage was' continued by the complainant to the present time, by extensive advertisements by signs, in newspapers and in “tube” trains running into New York City to points near which the stores of the complainant and the competing stores of the defendant are located. It also appeared that the stores opened by the defendant were near those of the complainant and necessarily in sharp competition therewith, and so continue to the present time.

Eliminating entirely the abundant proof of actual cases of confusion in this case (the admissibility of which is disputed), and considering all of the facts and bearing in mind the whole course of the controversy, and the' precedent wrongful use of the name (see International Silver Co., v. Rogers; 72 N. J. Eq. 937), there was ample and persuasive proof before the court of the likelihood of confusion. This proof is found in the testimony (read in the light of common knowledge), and in the inferences properly deducible from the testimony, relating to the conditions of competitive trading in the retail clothing business, to the respective methods employed by the parties in placing themselves before the public, to the respective locations of their stores, particularly in association with the “tube” advertising of the complainant, to the likeness of the store signs of the parties in the impression made upon the eye of the casual and ordinary observer, to the absence of effectiveness of the abbreviation “Jos.” in conveying to the mind of the public that the defendant was not the original Hilton, and to the similitude of the names i espectively employed by the parties.

Tt will he observed that the defendant, in.the trade name which he has adopted, has retained the name “Hilton,” the most prominent name in complainant’s trade name. He has substituted for the word “The” the diminutive “Jos.” He has substituted for "Company” written out the word "Co.,” and has put between “Hilton” and “Co.” the symbol He is not attempting to use his own name “Joseph Hilton” alone. What he is doing is using a trade designation which contains a part of his own name in conjunction with another word, also a part of the complainant’s designation. This has the appearance of a studied attempt to adopt a trade name as nearly like that of the complainant as possible without being identical. It is probable that there is no distinction in the public mind between the word “Company”-written out and “Co.” The defendant’s contention that he adopted the diminutive “Jos.” because he was so known to the trade is not supported by convincing proof. It is undisputed. that when he adopted the trade name of “Jos. Hilton & Co.” he was in business alone. He says that the reason he adopted it was that he “anticipated” taking in his two sons and one Max Tennenbaum as partners. It appeared at the hearing that in fact this partnership was formed December 26th, 1918, three days after the petition was filed. But the fact that he “anticipated” taking in partners did not justify him in adopting the trade name of “Jos. Hilton & Co.,” which, we think, in the circumstances of this case, was a violation of the decree of this court. If, as he says, at the time of adopting his trade name he contemplated partnership with his two sons and Max Tennenbaum, it would have been a simple matter for him to adopt a name which would indicate a desire to keep- well away from the dividing line between violation of, and compliance with, the injunction. This he did not see fit to do, although one can readily think of several combinations of the names of the defendant and his prospective partners which could have been adopted and which would not at all meet with, the disapprobation of the court.

The order under review will be affirmed, with costs.

For affirmance — The Chief-Justice, Swayze, Treuoi-iard, Paricer, Bergey, Minturh, Kalisch, Heppeni-ieimer, Williams, Taylor, G-ardher — 11.

For reversal — Hone.


author: Parker, J.

text:
    Samuel Portnow, by next friend, complainant-appellant, v. Morris Portnow et al., defendants-respondents.
    [Submitted March 24th, 1919.
    Decided June 17th, 1919.]
    By the law of this state, partition of land cannot be decreed in a case where the land is in possession ,of a tenant by the curtesy,- without the consent of such'tenant.
    On appeal from a decree advised by Vice-Chancellor Foster, dismissing the bill of complaint.
    The bill averred, that Mollie Kobrin, wife of Charles Kobrin and sister of complainant,. died intestate and without issue in October, 1917, seized in fee of a described tract of land in Essex county, leaving as heirs-at-law five brothers and sisters, of whom complainant is one, who hold the lands as tenants in common in fee, subject to- the fight of curtesy of her husband, Solomon Kobrin, and that he is in possession of said lands and receives the rents thereof. The bill prays a partition, or sale if partition be impracticable; and adds an averment that some $225 of complainant’s money was used by Mollie Kobrin in paying for the property,. under an 'agreement that he was to receive that amount out of the proceeds of sale of the property, and for which complainant claims a lien thereon. The prayer also is that the estate by the curtesy of Solomon Kobrin be included in the sale, and that out of the proceeds of sale said sum of $225 be paid to complainant, and the remainder of the purchase price disposed of according to the rights of the parties. There was no averment that the life tenant, Meyer Kobrin, consented to-the suit.
    The vice-chancellor, evidently viewing the bill as one for partition or alternative sale, and 'nothing more, dismissed it on the authority of Smith v. Gaines, 39 N. J. Eq. 545, and Radley v. Radley, 78 N. J. Eq. 170.

      Mr. Charles Jones, for the appellant.

      Mr. Edward R. McGlynn, for the respondents.
   T-hp opinion of the court was delivered by

Parker, J.

The vice-chancellor properly decided that complainant was not entitled to a partition, in the absence of consent by the particular tenant. This point was decided by this court in Smith v. Gaines, supra, cited by the vice-chancellor, in an opinion by the late Justice Dixon, -which contains a full discussion of the statutes and decisions. By the act of 1858, now section 27 of the Revised Partition act of 1898 (Comp. Stat. p. 3906), where there is a particular estate, partition can be had when the particular tenant consents thereto. In this case not only does the bill show no such consent, but the particular tenant expressly objected by his motion to dismiss the bill.

•Appellant relies on sections 18 and 19, of the Sale of Land act as supporting his bill. But those sections are not inconsistent with the statutes considered in Smith v. Gaines. The procedure they lay down for the sale of dower or curtesy is one entirely dependent on the lawful entertainment by the court of a suit for partition when such rights exist and this depends, in the case of an estate by the curtesy, on the consent of the tenant by the curtesy. This is made plainer by a glance at the history of the two statutes. Sections 18 and 19 of the Sale of Land act were passed in 1855. P. L. 1855 p. 49; Nix. Dig. 1855 p. 578. Section 27 of the Partition act was passed, as we have seen, in 1858; so that in case of inconsistency it would supersede that of 1855. That the legislature considered no inconsistency existed is shown by the fact that both acts were repeated in the general revision of our statutes in 1877 (page 802, section 30; page 1046, sections 18, 19), and have remained on the statute books ever since.

As to the claim of appellant that curtesy should be regarded as analogous to dower, and that in Bleecker v. Hennion, 23 N. J. Eq. 123, a bill for partition was entertained against the objection of the dowress, it is enough to say that in that ease the court had before it only the widow’s quarantine, and not dower assigned, and held that such right of possession by way of quarantine under section 2 of the Dower act was not a particular estate within the act of 1858. The case is therefore beside .the mark.

So much for the claim of a right to have partition against the wish of a tenant by the curtesy. There remains the claim of a lien of some kind for the money of complainant used in the purchase of the land. As to the existence of an equitable lien under the circumstances set out in the bill, there are decisions both ways, in the court of chancery. Haggerty v. McCanna, 25 N. J. Eq. 52; Bennett v. Finnegan, 33 Atl. Rep. 401; 65 Atl. Rep. 239; contra, Sawyer v. Platt, 77 Atl. Rep. 1043. We need not decide the point as it is not before us. Assuming for present purposes that complainant has an equitable lien enforceable by foreclosure and sale, this is not what he has prayed. The prayer is that the property be partitioned; or if it be found incapable of partition, sold; and that his claim be paid out of the proceeds of that sale. Manifestly, if his right to a partition or alternative sale is non-existent, there can be no fund' in this suit out of which payment can be made.

The decree dismissing the bill is affirmed, with costs.

For affirmance — Ti-ie Chibe-Justice, Swayze, Trbnci-iard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppeniteimer, Williams, Taylor, G-ardner — 13.

For reversal — None.


author: Bergen, J.

text:
    John S. Bruce, executor, complainant-appellant, v. George H. Bruce et al., defendants-respondents.
    [Submitted March 24th, 1919.
    Decided June 20th, 1919.]
    1. In construing a last -will and testament, the true intention of the testator, to be gathered from, the whole will, should be given effect, and it ought not to be so construed as to impute to the testator a purpose to die intestate or partially so if it can be avoided, the law preferring a construction that will prevent, rather than one which will permit, intestacy.
    2. The enumeration of paragraphs made by a testator on the margin of the paper on which the will is written, to which no reference is made by the testator in the body of his will as a means for the identification of something it contains, is not controlling in ascertaining the intention of the testator, and two such paragraphs may be read as one, to prevent intestacy, unless there is something in the will to the contrary, if the intention of the testator to dispose of his entire estate is otherwise clear.
    On bill in equity .for the construction of the will of Geoige A. Bruce, deceased.

      Mr. William G. Hille and Mr. J. Emil Wdlscheid, for the appellant.

      Mr. Charles E. S. Simpson, for the respondents.
   The opinion of the court was delivered by

Bergen, J.

We are asked to construe the holographic will of George A. Bruce, deceased, and the only question presented for determination is whether two paragraphs, numbered on the margin of the will as sixteenth and seventeenth, are, because of such enumeration, independent of each other or should be read as one.

The vice-chancellor found that they were independent, containing distinct gifts, and as the one marked on the margin as seventeenth undertook to dispose of the residue of the estate without naming a legatee it was void, and, therefore, the testator died intestate as to the residue. From the decree advised by the vice-chancellor this appeal was taken.

That the testator did not intend to die intestate as to any part of his estate appears beyond dispute, because he attempted to dispose of his entire estate by his will which provided' for the disposition of the residue thereof, and did so unless the construction adopted by the vice-chancellor is correct-.

The form of the will shows that every paragraph, prior to the one numbered “'sixteenth,” in which the 'testator devised and bequeathed any portion of his property, real or personal, except the latter part of paragraph 9, enumerated as ten, and paragraph 15 which provides for the division of testator’s, furniture among his children as they might select, he began each with the words “I give, devise and bequeath,” and this form was applied to- each legatee and his particular bequest. With this situation in mind we reach the paragraph numbered sixteenth, which begins with the same words, in which the testator gives to his son John S. Bruce a tract of land, describing it, “with all the buildings .thereon,” and following a space of about one-third of a line and beginning at the margin on the next line,

“all of the rest, residue and remainder of my estate, * * * that I have not devised and bequeathed to other members of my family, to have and to hold the same to Mm, his . heirs, executors, administrators and assigns.”

The testator wrote in the margin, and opposite the line beginning “all of the rest, residue and remainder of my estate,” the word “seventeenth,” from which it is argued that the residue was given to a legatee not named.

Fo reference to the enumeration is made in the will for any purpose whatever, and, as the vice-chancellor says, seem to have been written in the margin after the will was prepared.

In construing a last will and testament, the true intention of the testator, to he gathered from the whole will, should be given effect, and it ought not to be so construed as to impute to the testator a purpose to die intestate, or partially so, if it can be avoided, the law preferring a construction that will prevent, rather than one which will permit, intestacy. Carter v. Gray, 58 N. J. Eq. 411 and cases there cited.

Following this rule of law we are of opinion that the enumeration of paragraphs made by a testator on the margin of the paper on which the will is written, to which no reference is made by the testator in the body of his will as a means for the identification of something it contains, is not controlling in ascertaining the intention of the testator, and two such paragraphs may be read as one, to prevent intestacy, unless there is something in the will to the contrary, if the intention of the testator to dispose of his entire estate is otherwise clear.

If we disregard the enumeration and read the two paragraphs as one, then the word “him,” who is “to have and to hold,” refers to John S. Bruce named at the beginning of the paragraph, and completely disposes of the entire estate. This view, we think, should be adopted, as it was the clear intention of the testator not to die intestate as to any part of his estate, and this construction carries out that intention. Punctuation, the enumeration of paragraphs, or a mistaken use of either in a last will and testament, will not be regarded in its construction if to do so avoids the testamentary intention manifested by the language of the will, and they will be disregarded where necessary to a proper ascertainment of the testator’s intention.

The present case is largely one of fact founded on the examination of the original draft from which an inference may be drawn that* the intention of testator was that the seventeenth paragraph was a part of the sixteenth, .the gift being to John S. Bruce, first, of a parcel of land, and second, of the residue to him and his heirs. This construction, if not controlled by the enumeration, being consistent with the words of the will, and with the manifest intention of the testator to dispose of all of his property and not to die intestate as to any of his estate, should be adopted.

The decree below is reversed, and tire will construed to mean that John S. Bruce is entitled to the residue.

For affirmance — None.

For reversal — The Chibe-Justice, Swayze, Trenopiard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppeni-ieimer, Williams, Taylor, Gardner — 13.


text:
    Charles A. Hitchcock, complainant-respondent, v. American Pipe and Construction Company, defendant-appellant.
    [Argued March 5th, 1919.
    Decided June 20th, 1919.]
    1. The court of chancery of this state has no power to allow counsel fees, in a cause instituted in this state, for professional services rendered in a foreign jurisdiction in an independent litigation. The allowance must be for services rendered in a cause over which the court making the allowance has jurisdiction.
    2. Counsel fees ought not to be allowed a stockholder who institutes a suit against his corporation which is not for the benefit of any stockholder except ‘himself, especially when the suit is to the disadvantage of the other stockholders.
    On appeal from an order of Vice-Chancellor Lane allowing counsel fees, reported in 89 N. J. Eq. 440-

      Mr. Gilbert Collins and Mr. Francis B. Bracken (of the Philadelphia bar), for the appellant.

      Messrs. Runyon & Auienreith, for the respondent.
   The opinion of the court was delivered by

Bergen, J.

This is an appeal from an order made by the chancellor upon the advice of a vice-chancellor, imposing. upon the defendant the payment of counsel fees to the counsel of the complainant.

The facts, briefly stated, axe, that the defendant was a corporation chartered under the laws of the State of New Jersey, pursuant to our act relating to corporations. Its assets were very large, and if properly administered would realize sufficient to pay all its obligations, but on account of its inability to 'finance all its operations, because of the difficulty of raising money during a period of our war with Germany, it became financially embarrassed, and in order to preserve its assets for the benefit of its creditors and stockholders, and with the assent of the officers of the corporation, two of its stockholders filed a bill in the United States district court for the eastern district of Pennsylvania, and a receiver was appointed who took charge of the administration of its business which he so conducted that the company was able, within a few months, to pay all of its debts and resume its ordinary business, so that the receiver was discharged and the assets returned to the corporation.

This complainant appeared in that litigation and asked to have the receiver discharged and the bill dismissed upon the ground that the United States district court had no jurisdiction over the subject-matter because the defendant in that suit was a New Jersey corporation. This application was heard by the federal court and denied, whereupon an appeal was taken to the United States circuit court of appeals where the action of the district court was affirmed, and, subsequently, a writ of certiorari was allowed by the supreme court of the United States, which was never pursued, manifestly because the corporation soon paid all of its debts and had its. property returned to it. ■While this litigation was pending'the complainant in the present cause prepared and filed in the United States district court for the State of New Jersey a bill praying for the appointment of a receiver, but that court refused to entertain the application upon the ground that the federal court for the eastern district of Pennsylvania had taken jurisdiction and was able to afford relief. The complainant then filed the present bill in the court of chancery of this state, and upon it such proceedings were had that the vice-chancellor appointed a receiver under, our statute. The corporation having subsequently procured the discharge of the receiver appointed by the federal courts, made an application to the vice-chancellor that the receiver here be discharged and the property reconveyed to the corporation.

The vice-chancellor made an order that, because of a claim-being interposed by the complainant in the nature of a debt, which the corporation disputed, but was willing to secure, the corporation deposit bonds of the value of $13,000, “as security for the payment of any sum that may be awarded on any final adjudication thereof to this complainant, and for costs and counsel fees to the complainant in this cause,” and further ordered that there be paid to the receiver appointed by him, the sum of $3,000 as his compensation, and the sum of $2,000 as the compensation of his counsel, and also the costs and disbursements of the receiver, and that upon such deposit being made the defendant might present an order directing the receiver to convey the property; to the corporation. This allowance to the receiver and his counsel was paid. Following this, complainant’s counsel presented a claim to the receiver for $12,500 as counsel fees, which he' disallowed, and thereupon the claimants appealed from that decision to the vice-chancellor, who then made an order referring to the receiver, who had just rejected the claim as a special master, to take testimony and report his opinion as to the amount that ought to be allowed to counsel for their services in the pending cause, and the amount to be allowed for services rendered in the district court of the United States for the eastern district of Pennsylvania, including the supreme court of the United States,, and he reported to the vice-chancellor that the amount which ought to be allowed to counsel for services rendered in this cause should be $2,000, and the amount to be allowed as counsel fees in the federal courts should be $5,-000, and this report the vice-chancellor confirmed and made an order directing such payments to be made in the manner and for purposes reported by the special master. From this order the defendant lias appealed.

This order we conceive to be without support in law or equity, so far as it allows counsel fees for services in the federal courts, and as to services in the courts of this state a clear abuse of judicial discretion. This allowance of $5,000 is distinctly put upon the ground of services rendered by counsel in the federaL courts over which our courts have not the slightest jurisdiction, any more than the federal court would have the power to award counsel fees for sendees in the courts in this state out of funds impounded here, and it amounts to a judicial sequestration of the property of a litigant to pay for the services of the counsel of his opponent in a litigation which took place in a foreign state, and in a court having no relation to the administration of justice by the courts of this state. The vice-chancellor at first thought that the claim of counsel was a debt, but, subsequently, saw' the error of this and put the allowance'upon the ground that it was in the interest of the stockholders of the corporation. Clearly, it was not, but if it was, the services were, rendered in another and foreign jurisdiction over whose procedure he had not the slightest control, and the allowance of counsel fees in such case is not sanctioned by any statute or rule prevailing in this state. The proceedings in the federal court were not for the benefit of any stockholder other than the complainant, and he was unsuccessful in his contest. The rice-chancellor devotes a considerable portion of the opinion he filed in endeavoring to demonstrate that the federal court was without jurisdiction, but that question was not pertinent to the present issue and no consideration of it is necessary.

As to the allowance of $2,000 nothing was done by counsel in the present cause -warranting any such allowance. All that counsel did was to prepare and file, substantially, the identical bill filed by them in the United States district court for New' Jersey, and in our opinion was not filed in good faith, as there were no assets in this state to administer, and, so far as the record shows, nothing came to the receiver to be administered, and, so far as -we are able to see, nothing of any moment was done by his counsel, although together they were allowed $5,000 out of the funds of this corporation which was paid.

No real substantial benefit could be derived by any stockholder from this proceeding, and its only purpose was to raise in another way the very question decided against the complainant by the federal courts, and what Vice-Chancellor Stevenson said in Gallagher v. Asphalt Co. of America, 67 N. J. Eq. 441 may well be applied, which was: “The complainant’s application in this cause amounts simply to this: that she prefers to eome to this court and willfully refuses to go to the federal court. She wants this court to consider that she cannot get justice, or full justice, in the learned and distinguished court — the federal court —established here, and she therefore wants this, court, practically, to sit in judgment upon what the other court has done.”

Certainty, the allowance of $2,000 under these circumstances was not.warranted, for the allowance of counsel fees should be an exercise of judicial discretion, founded upon the knowledge of the court making the allowance of the real value of the services performed, and not rested upon the testimony of experts as to the general value of professional services, and, particularly, it ought not to be founded upon the conclusion of the very person who, as receiver, has once rejected the claim, and whose q-rnsijudicial action is the very subject of the appeal, which he is called upon to assist in determining, and we cannot approve the fixing of counsel fees by any such method.

The entire order is reversed.

For affirmance- — None.

For reversal — Tins Oiiief-Justice, Swayze, Trenciiard, Parker, Bergen, 'Minturn, Kalisch, Taylor, Gardner — 9.


author: Minturn, J.

text:
    In the matter of Jessie Gordon Sage, deceased.
    ÍArgued March term, 1919.
    Decided June term. 1919.]
    The deceased drew her will and took it to a neighboring store, where she requested two witnesses to sign it.. They did so without seeing the will, or the signature of the deceased in any part of it, and without any declaration by her that she had signed it,' and that it was her last will. —Held, that the document lacked the essential formality of publication, and was properly denied probate.

      On appeal from a decree of the .prerogative court advised by Vice-Ordinary Stevenson, whose opinion is reported ante p. 809.

      Messrs. Oondict, Oondict & Boardman, for the appellant.

      Messrs. Ziegner é Lane, for the respondent.
   The opinion of the court was delivered by

Minturn, J.

After Mrs. Jessie Gordon Sage, deceased, had drawn her own will, she took it to a neighboring store and requested two people there to sign it as witnesses, which they did, after which she folded up the document, and without any of the usual formalities attendant 'upon such an event, she went away, thereafter died,* and upon the production of the document at the surrogate’s office, by the husband, a caveat was filed by him to its probate.

The question involved is whether the document is a last will and testament under the requirements of our statute. Both the orphans court and the prerogative court held that it was not, and in that conclusion we concur.

The statute concerning wills is unique, in the fact that it stands as one of the few legislative products of an early generation which neither the reforming temper of advancing progress nor the iconoclastic hand of an all-pervading cacoathes for improvement has seen proper to disturb.

And, so, at a comparatively early period in our jurisprudence, this landmark of early legislative construction was subjected to judicial review at the hands of the learned Chancellor Zabriskie. Reviewing its provisions he said: “Eour things are required— first, that the will shall be in writing; secondly, that it shall be signed by the testator; thirdly, that such signature shall be made by the testator, or the maiding thereof acknowledged by him in the presence of two witnesses; fourthly, that it shall be declared to be his last will in the presence of these witnesses.

“Each and every one of these requisites must exist. They are not in-the alternative.” In re Gertrude R. McIlvane, 18 N. J. Eq. 499.

It is evident from the testimony of the subscribing witnesses to this document that the deceased overlooked the third requisite above described, in the execution of what she doubtless intended to be her last will. This is what happened as related by one of the witnesses:

“She came and asked me whether we would sign her will which she had folded up, and we saw nothing at all, except where we could sign it. Then we signed it and she seemed to be happy and put it back in her •bag.
“Q. Did she say anything else at all to vou about it?
“A. No, sir.
“Q. Or to Mr. DeWitt in your hearing about the paper? •
“A. No, sir.
“Q. Have you stated everything that she said about the paper which you heard at that time?
. “A. Yes, sir.”

Both witnesses testified that they saw no other portion of the will; that the deceased did not sign anything in their presence; that they did not see her name written in any part of the will; nor did she show them her name upon the document; nor did she state that she had signed it; nor was there any proof that her name was written in the will at the time.

Cases might be multiplied to evince the legal incompleteness of this document, as a will, without some adequate proof of its signing and publication as such by the testatrix.

It must suffice to say, that in that important particular, it lacks an essential statutory ingredient, which under the rule to which we have adverted, every document purporting to be the last will of a testator must.conform, in order to be established and proclaimed as such by the courts having jurisdiction of the subject.

The decree appealed from will be affirmed.

For affirmance — The Ci-iiee-Justice, Swayze, Treno hard, Parker, Bergen, Minturn, Kaltsoi-i, Black, White, Hepreniietmer, Williams, Taylor, Gardner — 13.

For reversal — None.


author: Kalisch, J.

text:
    Clarence H. Hedden, complainant-respondent, v. Thomas J. Hand, defendant-appellant.
    [Argued March 5th, 1919.
    Decided June 20th, 1919.]
    1; The act of 191S (P. L. 1918 p. 789) is unconstitutional in that its object is not expressed in its title.
    2. The act of 1916 (P. L. 1916 p. 815) is unconstitutional in that it attempts to give the court of chancery authority to abate certain public nuisances of a character specified in the act, which are criminal offences, thereby, in effect, holding a person for a criminal offence without the presentment or indictment of a grand jury.
    3. As the court of chancery never possessed jurisdiction over criminal offences, the act also violates the constitutional provision that the several courts of law and equity shall continue with the like powers and jurisdiction as they had before the adoption of the confetitution.
    4. The statute is also rendered unconstitutional, because in its operation and effect it deprives the supreme court of one of its inherent prerogative rights to pass upon and to determine in the first instance the questions whether the acts complained of constitute a public nuisance and whether such nuisance shall' be abated.
    On appeal from an order advised by Vice-Chancellor Lane denying motion to strike out bill of complaint.

      Mr. Henry L. Groaken, for the appellant.

      Mr. Arthur T. Vanderbilt, for the respondent.
   The opinion of the court was delivered by

Kalisch, J.

The complainant filed his bill of complaint as a resident of the city of Newark, in the county of Essex, in the court of chancery, charging that Thomas J. Hand, on June 2-3d and 30th, on July 7th and 14th, on August 18th, on September 15th, 1918, and continuously for some time prior thereto,’ did keep and maintain a certain building for the purpose of lewdness, assignation and prostitution and habitual sale of intoxicating liquors in violation of law, and wherein other indecent and disorderly acts are permitted and occur. The complainant prayed that an injunction may issue directed to Thomas J. Hand, and to the owner and lessor of the premises and their agents perpetually enjoining them, their agents and lessees from maintaining and permitting such nuisance, and likewise enjoining the removal of any furniture, furnishings, musical instruments or other personal' property, except clothing from said building, pending the final hearing of the cause.

A restraining order was issued in pursuance of the prayer, subject to further order of the court.

A motion was made to strike out the bill on the ground that the legislative acts upon which the legal efficacy of the bill depended are unconstitutional.

This motion was denied and hence this appeal. The sole basis of the bill is the act of 1916 (P. L. 1916 ¶. 315) as amended in 1918. P. L. 1918 p. 739.

The statute of 1916 s entitled

“An act declaring all buildings and places wherein or upon which acts of lewdness, assignation or prostitution are permitted or occur to be nuisances, and providing for the abatement thereof by the court of chancery.”

The statute of 1918 is amendatory of the title of and provisions of the act of 1916, and by section 1, amends the title so as to read:

“An act declaring all buildings and places wherein, or upon which acts of lewdness, assignation' or prostitution or the habitual sale of intoxicating liquor in violation of law are permitted or occur to be nuisances, and providing for the abatement thereof by the court of chancery.”

The -evident purpose of this amendment was to add to the category of acts mentioned as nuisances in the title of the act of 1916, the habitual unlawful sale of intoxicating liquor.

The other provisions of the statute of 1916, amended by the later act, are: Section 8, which makes provision that where the disorderly house consists of the habitual unlawful sale of intoxicating liquor, such liquor may be removed and shall be destroyed as soon as may be when no longer required for evidence. Section 9, which excepts intoxicating liquor from the operation of the clause of this section relating to fees to be allowed to the officer for removing and selling movable property, and section 10 which excludes intoxicating liquors from coming within the purview of the section.

On this branch of the case, counsel of appellant, first, contends that the amendatory act is in violation of article 4, section 7, paragraph 4 of the constitution of New Jersey,.in that the object of the act is not expressed in its title.

In support of this contention it is argued in substance, that the title of the original act was made to fit its object as then created, and that the effect sought to be attained by the amendatory act was to enlarge the scope of the original, so that its provisions would become applicable to a new subject-matter not embrae'ed within the language or meaning of its title or body, namely, by adding to its category of acts denounced as nuisances, “the habitual sale of intoxicating liquors in violation of law,” of which there is no premonition in the title of either act.

In so far as the title of the act of 1918 is concerned in its relation to the introduction into its body the provision of the habitual sale of intoxicating liquors in violation of law as a new subject-matter to be embraced within the scope and operation of the act of 1916, it is plain that the amendatory statute does not express this object in its title.

Its title is palpably deceptive and misleading. It gives notice that its object is to amend the title and provisions of an act, &c. It is silent in what respect the title is to be amended, and leaves it open to belief that all the provisions of the act of 1916 are to be amended. The original act contains fourteen sections, of which five were amended. The title of the later statute gives no notice that it was to contain a provision in its body which in effect would broaden the act of 1916 so as to extend the jurisdiction of the court of chancery to cases where the nuisance consists of “the habitual sale of intoxicating liquor in violation of law.”

In support of the constitutionality of the amendatory act it is strenuously argued, by counsel of respondent, that the legislation impugned does not attempt to engraft on the original statute incongruous matter, since both acts deal with nuisances and provide identical remedies — and that the act and amendment would be valid if it were merely “an act concerning nuisances and the abatement thereof in chancery.”

The statement that both acts deal with'nuisances and provide identical remedies is not quite accurate. • The amendments, in some respect, provide a different procedure where the nuisance complained of is created by the habitual unlawful sale of intoxicating liquor from that pursued in cases of nuisance provided for in the original act.

■ Further, the argument addressed to us ignores the vital circumstances that the title of the statute under discussion limits the invoking of the action of the court of chancery to certain acts which are specifically mentioned and denominated in the title as nuisances, and which according to unquestioned and settled statutory construction by necessary implication excludes all other public nuisances at common law from the operation of the act.

The present statute in its title differs from a situation where such title is general and broad enough to include within its terms congruous matter dealt with by the amendment.

The title by reason of its specific restrictive language, in the present instance, violates a fundamental rule of the constitutional mandate, in that it fails to give notice of the effect of the legislation to one conversant with the existing state of the law. Sawter v. Schoenthal, 83 N. J. Law 501. The reasoning of Mr. Justice Swayze, speaking for this court, in the case cited, is peculiarly applicable here. At page 503, he says: “If we now look at the essential character of this legislation, it is plain that the legislature’s object was to tax transfers of property occurring from the death of the owner or made in contemplation of his death or to take effect at or after his death. The original legislation reached only certain kind of transfers. The amendment of 1906 sought to make this more general and to reach all transfers in such eases. In common parlance all were spoken of as inheritance taxes and .if the title of the act of 1891 had read ‘An act to tax estates and inheritances/ it would have been broad enough to include the matter of the act of 1906,” &c. And so in the ease sub jucUce, if the title of the act of 1916 had read, “An act concerning nuisances and the abatement thereof in chancery,” it would not only have been broad enough to include the unlawful habitual sale of intoxicating liquor, as well as any other public nuisance, such as gaming houses, resorts for thieves, idlers, disorderly persons, &c., which, though they are congruous, with the subject-matter of the act of 1916 — being public nuisances, are nevertheless excluded from the operation of the statute by reason of its specific title. The act of 1918 by reason of its defective title is inoperative and unenforceable.

The elimination of this statute from the ease on account of the constitutional defect pointed out removes one of the basic grounds upon which the complainant’s bill and the action of the court below rested.

The legality of the proceedings under review must, therefore, derive its sole support from the original act of 1916.

The constitutionality of that statute is also questioned on two principal grounds which may be summed up, as follows — first, that the statute contains unconstitutional provisions, and which provisions are so interwoven with other sections of the act, that those which are unconstitutional cannot he exscinded without rendering the entire statute inoperative; second, that the legislation, in itself, is unconstitutional, in that it attempts to confer upon the court of chancery jurisdiction of a subject-matter of a purely criminal character.

The interesting questions raised, by counsel of appellant, as to the constitutionality of several provisions of the statute involving fundamental propositions which may afEect more or less the validity of the whole act, need not be considered and decided on this appeal, for the reason that there is a prime fundamental question which goes to the validhy of the- entire statute, and that is, whether the legislature overstepped the bounds of its constitutional limitations in attempting to confer jurisdiction upon the court- of chancery of the subject-matter dealt with by the act. Thus it becomes important to consider first, the purpose and nature of the statute.

The fixed purpose of the statute, evidenced by its title,'is to declare that certain buildings or places in or upon which the acts specified in the title are permitted or occur to be nuisances and to be abated in the court of chancery.

The first section of the act substantially follows its title. The specific violations denounced therein are nuisances, indictable and punishable at common law under the Crimes act. The third and fourth sections of the statute confer power and authority on the prosecutor of the pleas or any resident of the county where the nuisance is alleged to exist, to maintain an action in the court of chancery to abate and prevent stick. nuisance, and provide that the action shall be brought in the name of the prosecutor, and that it shall be unnecessary to allege or prove special damage. Thé fifth and sixth sections make the further provision that the action shall be commenced by filing a verified bill of complaint and the issue of subpoena; and that all proceedings in such action shall be in accordance with the usual practice in the court of chancery; that the chancellor being-satisfied of the sufficiency of the bill shall issue an order to show-cause on a certain day why an injunction should not issue against the defendant in accordance with the prayer of the bill, with restraint of the alleged nuisance and the removal of any furniture, furnishings, musical instruments or other personal property, except clothing, from such building or place complained of until further order of the court,'and that on the return of the rule if the chancellor is satisfied of the sufficiency of the proofs submitted, he shall issue a temporary injunction, without bond, enjoining and abating the nuisance in accordance with the restraint prayed for. Then, follow provisions for the carrying into effect the final decree of the court of chancery that the nuisance be abated by a forfeiture of the personal property found on the premises, the disuse of the premises for any purpose for one year, unless sooner released by the court of chancei-j-, &e., .and a further provision that the violation or disobedience of either any injunction or order provided for by the act shall be punishable as a contempt of court, by a ’fine not less than two hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for not less than one month nor more than six months, or by both fine and imprisonment.

Thus, it follows, as a matter of course, after a temporary injunction has been issued, or an order made in the case, an allegation that the nuisance still continues may, on proof thereof, be heard in a summary manner, and be punished, as a contempt of court, by fine and imprisonment. But the startling feature of the operation of the statute is, that the temporary restraint makes the removal of any personal property (except clothing), no matter how innocuous in character.it may be, whether it be the portrait of a family ancestor or a copy of the Holy Scriptures, punishable by fine and imprisonment.

It is difficult from a plain reading of the statute to escape the conclusion that it attempts to add to the equitable powers possessed by the court of chancery, the power to deal with a certain class of criminal eases by the writ of injunction, and the summary process of contempt.

Apparently recognizing ah insuperable obstacle in the way of upholding the constitutionality of the statute in view of the provision of article 6, section 1, that “the judicial power shall be vested” in the courts enumerated, amongst which is the court of chancery, “as now exist,” and of article 10, section 1, which, among other things, declares:

“The several courts of law and equity, except as herein otherwise provided, shall continue with the like powers and jurisdiction as if this constitution had not been adopted,”

counsel of respondent argues and urges most strenuously that the court of chancery possessed the jurisdiction at common law to enjoin and abate the nuisances specified in the statute. This assertion necessarily raises the inquiiy, to what extent has the court of chancery exercised jurisdiction over nuisances prior to the adoption of our constitution?

The jurisdiction of a court of equity to control and afford relief in a case where 'the nuisance is a public one and indictable, at the suit of a privaté individual who has suffered an injury from such nuisance beyond that sustained by the general public cannot be successfully questioned. An examination of the cases, in which the element of a public and indictable nuisance were present, will disclose that the potent factor that induced a court of equity to exercise jurisdiction and to give relief was not for Í the purpose of suppressing a public nuisance but to redress a private wrong done to the individual, and who sought relief from the court on the allegation that unless the nuisance was enjoined he would suffer irreparable injury.

There is some confusion in the cases as to what Lord Hardwicke decided in Baines v. Baker, Amb. Ch. Rep. 158. This case is also reported anonymously in 3 Atk. 750, but not as clearly and fully as in Ambler. On a bill for injunction to stay building an inoculation hospital for people infected-with small pox, very near the houses of several tenants of the plaintiff, 'Lord ITardwicke (at p. 159) said: “Bills of this sort are founded on being nuisance at common law. If a public nuisance, it should be in the name of the attorney-general, and then it would be for his consideration, whether he would file such information or not; and that was the case for stopping a way behind the exchange in the city. Lord King recommended it to the attorney-general, to prefer an information in the King’s Bench, to try whether it was a nuisance or not.” The motion for an injunction was denied. In a much later case, decided in 1799, the Mayor, &c., and Citizens of London v. Bolt, 5 Ves. Ch. 128, it appears that there were several old houses on Snow Hill, which were to he pulled down to improve the city, and were empty, and that the defendant took them as temporary warehouses for storing sugar, which he had introduced in such quantities, that two of the houses had actually fallen and the others were in the most imminent danger.

An application was made to Lord-Chancellor Loughborough, for an injunction, to prevent the defendant from putting any more, sugar in the houses, and in granting the injunction the lord-chancel!or (at p. 138) said: “But I can only order the in- ' junction upon the petition. I cannot order anything to be done; and it will be necessary to do more; as shoring up the houses, and removing the sugar. I shall make the order upon the petition; but it seems to me, the lord-mayor can apply a much more effectual remedy. Can there be a doubt, that it is within his office upon presentment of the ward, that these houses are a public nuisance, to order the nuisance to be abated, the houses to be shored up, and the weight removed? * * * The chief magistrate by his general jurisdiction has authority to abate a nuisance in a public street, to shore up the houses under the direction of a surveyor, and make it safe for the public I can interfere only as between landlord and tenant.”

These remarks contain an express disavowal of airy power residing in a court of equity to abate a' nuisance. It is also noticeable that the nuisance dealt with was one affecting the safety of a public highway for travel, and there can be no question that such a nuisance, upon application of the attorney-general, could be properly made the basis of granting preventive relief by injunction.

The case of Attorney-General v. Cleawer, 18 Ves. Ch. 210, was one where an information was filed by the attorney-general, at the relation of several inhabitants of Battersea and ' Chelsea, to restrain the defendants from manufacturing soap or black ash, &c. The defendants were under an indictment for maintaining a public nuisance, which had been removed in the King’s Bench for trial. Lord Eldon refused the injunction and took occasion to say (at p. @17) : “The ease cited by Lord Hardwieke, as having occurred before Lord King, was an information here by the attorney-general against a public nuisance by stopping a highway. Analogous to that there have been many cases in the court of exchequer of nuisance to harbours; which are a species of highway; and if the soil belongs to the crown there is one species of remedy for that: the crown maj^ abate the obstruction; as it is upon the king’s soil. Where it is not upon the king’s soil, but merely a public nuisance to all the king’ subjects, though the suit may be in the same form, the law is laid down in treatises, particularly by Lord Hale, De Portibus Maris, that upon the ground of public nuisance, and not as an obstruction upon the king’s soil, it is a question of fact, which must be tried by a jury; and though the suit may lie entertained, the court -would be bound to try the fact by the intervention of a jury.” In the later case of Crowder v. Tinkler, 19 Ves. Ch. 617 (decided in 1816), the plaintiff filed a bill to 'restrain the defendants from completing a building to be used for storing large quantities of gun powder, alleging that the defendants kept on their premises a dangerous quantity of powder, liable to cause explosion and thus (endangered their lives and property, and that the plaintiffs intended to proceed against the defendants to abate and remove the new building and that the danger of explosion was so imminent that the court should immediately interfere, Lord Eldon (at p. 619) said: “I incline to think that, an injunction may be granted in this case, not of nuisance, but of danger to property!” And (at p. 621) he further said: “Where the subject of complaint is matter of public nuisance the attorney-general alone can sue; but it is going too far to say, particularly without more materials than can be had on motion, that if a plain nuisance is attended with particular and special injury to an individual, producing irreparable damage, that individual shall not be at liberty to come .here, unless the attorney-general chooses to accompany him.”

This case is cited in Chase v. Proprietors of Revere House, 122 N. E. Rep. 162, in an opinion of the supremo court of Massachusetts as supporting the statement made by that court (at p. 164) that “the jurisdiction of a court of equity over the abatement and suppression of a nuisance, whether public or private, is settled, and may be exercised, although the nuisance is made by statute an indictable offence.” A careful reading of Crowder v. Tinkler, supra, will show clearly that it does not support such a view. The theory on which the preventive relief was granted was the danger imminent to the property of private individuals of being destroyed by an explosion and producing irreparable injury to their private interests. As to the abatement of the public nuisance, it is clear, from a reading of.the case, that the lord-chancellor held that such a result would only lie properly accomplished by an indictment and a trial in a court of law.

“The greater part of these acts which are indictable as common nuisances cannot from their nature be cognizable in a court of equity.” 2 Waterm. Eden Injunc. (2d ed.) 264. In a note to the text, gaming-houses, bawdy houses and public nuisances of a like character are mentioned as not coming within the cognizance of a court of equity.

In Attorney-General v. Utica Insurance Co., 2 Johns. Ch. 371, Chancellor Kent (at p. 378) said: “If a charge be of a criminal nature, or ah offence against the public and does not touch the enjoyment of property, it ought not be brought within the direct jurisdiction of this court, which was intended to deal only in matters of civil right, resting in equity, or where the remedy at law was not sufficiently adequate.” This case is cited with approval in Attorney-General v. Tudor Ice Co., 104 Mass. 239. At p. 240, Mr. Justice Gray said: “This court, sitting in equity, does not administer punishment or enforce forfeitures for transgressions of law; but its jurisdiction is limited to the protection! of civil rights, and to cases in which full and adequate relief cannot be had on the common law side of this court or of the other courts of the commonwealth.”

ISTo instance can be found in the English reports, nor in the reports of this country, in states where the common law prevailed, and still prevails, where a court of equity has ever taken cognizance of a case of a public nuisance founded purely on moral turpitude.

Ajlt is clear that if the legislature may bestow on the court of J/ chancery jurisdiction to grant an injunction and abate a public nuisance of a purely criminal nature, then there can be no valid argument against the power of the legislature to confide the entire criminal code of this state to a court of equity for .enforcement. It is apparent that such a court would render nugatory the provisions of the constitution which guarantee the right of a presentment by a grand jury, and a trial by jury, to one ac- -- cused of crime.

^Before leaving this topic it may serve a useful purpose to refer to the case of State v. Uhrig, 14 Mo. App. 413, in which the opinion contains a compendium of the grounds on which the jurisdiction of a court of equity was exercised in cases of public nuisance. It divides public nuisances into three classes of cases: “Eirst, to restrain purprestures of public highways or navigation; second, to restrain threatened nuisances dangerous to the health of the whole community; third, to restrain ultra vires acts of corporations injurious to public right; and that the exercise of equity jurisdiction in these three classes of eases is an exception to the rule * * * that a court of equity has no jurisdiction in matters of crime.”

Our examination into the state -of the common law relating to the jurisdiction of a court of equity of a public nuisance of the character before us prior to the adoption of'our constitution, leads us to the conclusion that a court of equity never possessed nor attempted to exercise such jurisdiction in this state. Attorney-General v. Heishon, 18 N. J. Eq. 410.

Now, as to the constitutionality of the act in attempting to give authority to the court of chancery to abate the specified public nuisance.

The authority to abate a public nuisance resided solely in the courts of criminal jurisdiction at common law.

All common nuisances are regularly punishable by fine and imprisonment; but, as the removal of the nuisance is the chief end of the indictment, the court will adapt the judgment to the nature of the case. Where, therefore, the nuisance is stated in the indictment to be continuing, and does in fact exist at the time of the judgment, the defendant may be commanded by the judgment to remove it at his own cost. 2 Rol. Abr. 84 Hawk. P. C. ch. 75 14; Rex v. Pappineau, 1 Str. 686; Taggart v. Com., 21 Penn. 527; 2 Arch. Cr. Pr. & Pl. 1772 noi'e.

Tn State v. Morris and Essex Railroad Co., 23 N. J. Law 360, Chief-Justice Green (at p. 370') said:'' “The principal object of an indictment for a nuisance is to compel it to be abated; and regularly a part of the judgment upon conviction is, that the nuisance be abated.” 1 Chit. Crim. L. 716; King v. Stead, 8 D. & E. 142.

“A similar judgment was rendered in the case of State v. King, in the Passaic oyer and terminer, which has since been affirmed in the court of errors and appeals.’’]

There is no doubt that the legislature may lawfully confer on the court of chancery the injunction power in a. new class of ca^es to which such remedy is appropriate* or to extend the jurisdiction of the court to a class of cases which by their nature may come properly within the sphere and application of equitable principles, but that is an entirely different situation from the one which confronts us here.

^The present case is not one extending the jurisdiction of the court of chancery to a new class of cases which have arisen and call for the application of the equitable powers of that court. What we axe met with is a legislative attempt to abstract from and to shear the supreme court of a common law power and prerogative right vested in it by the constitution, and an attempt to transfer to and settle such power on a court of equity. This surely cannot be lawfully done.

The supreme court is not only an appellate court in all cases from the inferior courts of civil and criminal jurisdiction, but is also a court of original jurisdiction in civil and criminal cases. An indictment for public nuisance is cognizable in that court. The indictment may be removed from the oyer and-terminer or quarter sessions to the supreme court and the accused tried there, and upon conviction, the judgment may be fine or imprisonment, or both, and that the nuisance be abated. If the indicted party is tried in the oyer and terminer or quarter sessions on an indictment for maintaining a public nuisance and is convicted, he may have his writ of error out -of the supreme court and there have the judgment against him reviewed.

It is manifest that the statute in its operation and effect deprives the supreme court of its inherent right to pass on the question whether the facts, proven constitute a public nuisance, and, if so, should be abated. For the important fact cannot be ignored that the order to abate a public nuisance is part of a common law judgment, rendered on a conviction upon an indictment for maintaining a public nuisance. As no writ of error can be properly sued out of the supreme court for a review of the decree of the court of chancery, it follows that the supreme court is deprived of one of its inherent prerogative rights. And this result is brought about by bringing the cognizance of a common law crime within the jurisdiction of a court of equity to be dealt with according to the procedure of that court in enforcing the penalties of -the statute prescribed for the offence. Such an obvious evasion of constitutional authority will not be tolerated. Entries v. State, 47 N. J. Law 140. In Flanagan v. Plainfied, 44 N. J. Law 118, Mr. Justice Van Syckel (at p. IBp), said: “There can be no contraction of the sphere within which the supreme court may dispense its prerogative writs except by extinguishing the tribunals to which they may be sent. A law is equally without authority whether it in express terms or by its operation and effect takes away or diminishes the inherent power of the court.” A most comprehensive and lucid exposition of this doctrine is to be found in an opinion by Chief-Justice Beasley, speaking for this court in Jersey City v. Lembeck, 31 N. J. Eq. 255

Keeping in view that the maintenance of disorderly houses was a crime at common law and was punishable and abatable, in the courts of criminal jurisdiction only, it is clear that the effect of making such a crime punishable and abatable in the court of chancery is to deprive a defendant of his constitutional right to have an indictment preferred against him by a grand jury of the county in which such nuisance is alleged to- exist, and a trial by jury. It is idle to entertain the thought for a single moment that the legislature can change the nature of an offence by changing the forum in which it is to be tried /Palys v. Jewett, 32 N. J. Eq. (at p. 318). " '

Article 1, section 9 of the constitution declares that—

“No person shall be held to answer a criminal offence unless on the presentment or indictment of a grand jury except in cases of impeachment, or in cases cognizable by justices of the peace,” &c.

In State v. Anderson, 40 N. J. Law 224., Chief-Justice Beasley, after stating that the keeping a disorderly house is a crime indictable at common law (at p. 227), in commenting on this constitutional provision, pointedly said: “The purpose of this clause was to prevent the bringing of any citizen under the reproach of being arraigned for crime before the public, unless, by a previous examination taken in private, the grand inquest had certified that there existed some solid ground for making the charge.”

In conclusion, it may be mentioned that the authority attempted to be conferred by the legislature on the court of chancery to abate a public nuisance of the character specified in the statute can be more effectually exercised by the inherent power possessed by the criminal courts as established in this state.

We think the motion of counsel of appellant made in the court below to strike out the bill of complaint on the ground that the statutes upon which it is founded are unconstitutional should have prevailed. The order denying the motion is reversed, and the court of chancery is directed to decree a dismissal of the bill.

For affirmance — White—1. '

For reversal — Ti-ie Chief-Justice, Swayze, Trenohard, Parker, Bergen, Minturn, Kalisch, Heppenheimer, Taylor, Gardner — 10.


author: Black, J.

text:
    Eliza M. Abbe, complainant-respondent, v. Frank M. Donohue and Saint Peter's Catholic Church of New Brunswick, New Jersey, defendants-appellants.
    [Submitted March term, 1919.
    Decided June 17th, 1919.]
    1. Three sisters in New Brunswick made á deed to Saint Peter’s Catholic Church of New Brunswick, New Jersey, in order to put the land in hands which would keep it forever out of the possession of Rutgers College. The deed was handed to Dr. Drank M. Donohue, by one of the grantors in the presence of the other two, the friend and agent of the grantors, to be handed over to the church, when the last of the sisters had died. After two of the sisters had died, one of them filed this bill to have the deed set aside. The deed provided, that the land should be held subject to the use of the grantors for and during the terms of their natural lives. — Held, that this did not constitute a delivery of the deed. ' ''

      2. To constitute a good delivery; it must appear from the circumstances of the transaction, that it was the grantors’ intention to part with the deed and thereby put the title in the grantee, there must be a final absolute transfer of title.
    8. So, there may be a delivery of a deed in escrow, but it must be absolute, and of such a nature, that the vendor loses dominion and control over the title of the property.
    On appeal from a decree óf the court of chancery.

      Mr. Peter F. Dcily and Mr. Bussell E. Watson, for the appellants.

      Mr. Alfred F. Skinner, Mr. Carl A. Feick and Mr. Julian C. Harrison, for the respondent.
   The opinion of the court was delivered by

Black, J.

A bill of complaint was filed in the court of chancery by the respondent to have a deed dated June 22d, 1911, set aside, declared null and void and of no effect, on the ground that there was no present delivery of the deed. The deed was made by the respondent, Eliza M. Abbe, and her two sisters, Maria R. Martin .and Serena A. Martin, to Saint Peter’s Catholic Church of New Brunswick, New Jersey, for property located on the easterly side of College avenue, in the city of New Brunswick. A decree was made by the court of chancery in conformity to the prayer for relief in tire bill of complaint, hence this appeal. A short narrative of the facts will'show the situation under which the court of chancery made the decree.

On June 22d, 1911, Eliza M. Abbe, Serena A. Martin and Maria R. Martin, three sisters, executed the deed. The land described in the deed is a tract of land about six and seven hundredths acres. The deed provides, that the land and premises are to be kept-in their entirety and the property to be used exclusively for charitable purposes, in connection with the work of the church.. There shall be erected and maintained stone archways over the George street and College avenue entrances to the property, on which shall be inscribed the words “Mahlon C. Martin Memorial Institute.” A life estate was reserved to the grantors. The purpose of this deed, as shown by the testimony, was to put the land in hands which would keep it forever out of the possession of Rutgers College. There, was no consideration actually paid for the deed. The grantors retained.possession of the land. The deed was placed in a sealed envelope and delivered to one of the appellants, Dr. Frank M. Donohue. On the outside of the envelope were written the following endorsements:

“The within deed is this day delivered to Dr. F. M. Donohue for Saint Peter’s Catholic Church of New Brunswick, New Jersey, and is to be handed him, or the person designated by him, to the rector of the said church upon the death of the survivor of us.
“Dated June 22d, 1911. Serena A. Martin.
“Witness , Eliza M. Abbe.
“W. E. Florence. Maria It. Martin.
“Presented by his family in enduring remembrances of their brother. In cáse of my death, my executors shall deliver this package unopened to Millard F. Boss, who is hereby authorized to carry out the provisions therein contained.
“Frank M. Donoi-iue.
“February 21st. 1917, the seals on this envelope were broken by Frank M. Donohue iu the presence of Mahlon C. Martin, Jr. (who was a nephew of the grantors), at the request of Miss Maria B. Martin.
“Frank M. Donohue.
“Attest: Mahlon C. Martin, Jr.”

On December 13th, 1912, Miss Serena A. Martin died. On February 9th, 1918, Miss Maria R. Martin died. The deed remained in Dx. Donohue’s possession and nothing was done until April 2d, 1918, when this bill was filed by the complainant, Eliza M. Abbe, one of the grantors. Dr. Donohue was the agent of the grantors to pass the deed .to the grantee upon the decease of thé last surviving grantor. At the time of the execution of the deed in handing it to Dr. Donohue, one of the grantors, in the presence of the other two, said: “Doctor Donohue, will you take charge of this paper and carry out its instructions for us ?”

. The question, therefore, is, Did this constitute a legal delivery of the deed ? The court of chancery held that it did not; with this conclusion of that court we concur.

In legal phraseology delivery means, the final absolute transfer of title to the grantee of a complete legal instrument, by the grantor. Black v. Shreve, 13 N. J. Eq. 455, 461.

In affirming the decree of the court of chancery in the case of Watson v. Magill, 97 Atl. Rep. 43; 85 N. J. Eq. 592, this court adopted the-language used by Vice-Chancellor Learning'thus : A deed can be delivered in escrow, and the escrow can provide for the second dr subsequent delivery at the death of the vendor; but in order, that it may be effective the delivery in escrow must be absolute. It must be. of such nature, that the title of the property passes from the vendor, that the vendor loses dominion and control over the title of the property; not over the possession, he may retain possession, but over the title. This seems to be elementary. 8 R. C. L. 45 et seq. 973; 13 Cyc. 561, 569. This point was under consideration by this court in the case of Schlicher v. Keeler, 67 N. J. Eq. 635, 639. There it was said, to constitute a good delivery, it must appear from the circumstances of the transaction, that it was the grantor’s intention to part with the deed' and thereby put the title in the grantee. It is not a valid delivery of a deed conveying land, when it appears, that the intention of the grantor was that the delivery should relate to the date of the death of the grantor. The point was under consideration by the court of chancery in the case of Rowley v. Bowyer, 75 N. J. Eq. 80, where many eases are analyzed and reviewed and' many citations collected by Vice-Chancellor Learning. The record shows clearly and without controversy, that Dr. Donohue was not in any way representing the church. He so states frankly and further says he was acting because Miss Maria R. Martin asked him to so act and for no other reason. The delivery of a deed-is a question of fact, the intent of the grantor to make the conveyance effective must appear. Jones v. Swayze, 42 N. J. Law 279, 282.

We conclude, therefore, there was no present delivery of the deed by the grantors — there was no intention by them to part with all control and dominion over the instrument and the property. It was not an absqlute delivery to Dr. Donohue, and it was not meant to pass title immediately.. On the contrary, it was meant that the sisters should retain a life right and the title should not pass until after their death. Schlicher v. Keeler, 67 N. J. Eq. 640. It attempts to create an estate in fee-simple to take effect in futuro, when there is no particular estate to support it. .

This view disposes of the case. It is unnecessary to consider the other interesting points argued in the briefs of the respective counsel.

The decree of the court of chancery is affirmed, with costs.

For affirmance — The Ci-iiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Black, White, Hbp-PENHEIMER, WILLIAMS, TAYLOR, GARDNER — 13.

For reversal — None.


author: Per Curiam.

text:
    James M. Dunlap, respondent, v. Emma D. Chenoweth et al., appellants.
    [Decided May 8th, 1919.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Backes, and reported in 88 N. J. Eq. 496.

      Mr. David O. Watkins, for the respondent.

      Mr. Timothy J. Middleton and Mr. Herbert A. Drake, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kaliscit, Black, White, HepPENHEIMER, WILLIAMS, TAYLOR, GARDNER — 13.

For reversal — None.


text:
    William A. Kelly et al., complainants-respondents, v. Barnet Chinich et al., defendants-appellants.
    [Submitted March 24th, 1919.
    Decided June 17th, 1919.]
    On appeal from the court of chancery.

      Messrs. Plaii & Lesser, for the appellants.

      Mr. Charles M. Myers and Mr. Milton M. Unger, for the respondents.
   Per Curiam.

This case was marked to be submitted on briefs, and briefs came in on both sides. That for the appellants, however, is not signed by counsel, and cannot be considered. The case stands as though the appeal had not been moved, and respondents are consequently entitled to a decree of affirmance. Hazard v, Phœnix Woodworking Co., 78 N. J. Eq. 568.

For affirmance — The Ci-iiee-Justice, Swayze, Trenohard, Parker, Bergen, Minturn, Kaliscit, Black, White, HepPENHEIMER, WILLIAMS, TAYLOR, GARDNER-13.

For reversal — None.


text:
    Mayor and Aldermen of Jersey City, appellant, v. Jersey City Water Supply Company, respondent.
    [Decided May 15th, 1919.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante p. 14.

      Mr. John Bentley, for the appellant.

      Messrs. Humphreys & Sumner, for the respondent.
   Per Curiam.

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

For affirmance — The Chibe-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, White, Heppent-ieimer, . Williams, Taylor, Gardner — 12.

For reversal — None.


text:
    Ernest G. Randal, complainant-respondent, v. Hillside Pleasure Park Company et al., defendants-appellants.
    [Argued March term, 1919.
    Decided June 20th, 1919.]
    On appeal from a decree of the court of chancery.

      Mr. Henry L. Oroshen, for the appellants.

      Mr. Arthur T. Vanderbilt, for the respondent.
   Per Curiam.

The questions raised on the appeal in this case are identical with those reviewed and decided in Hedden v. Hand, No. 24 o! the March term, 1919 (see aiüe p. 535), and for the reasons given in the opinion in that case, the order of the court of chancery is reversed.

For affirmance — "White—1.

For reversal — The Ci-iiee-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoi-i, I-Ieppeni-ieimer, Taylor, Gardner — 10.