text:
    Sumner Lodge, No. 180, I. O. O. F., v. Odd Fellows Home of New Jersey et al.
    [Decided June 23d, 1910.]
    1. In the absence of statutory authority a benevolent and charitable corporation has no power, by the action of its stockholders and directors, or either, to voluntarily dissolve itself.
    2. A corporation organized for benevolent and charitable purposes could not, under the act incorporating it, use its funds in any other manner except as provided in the act. Its certificate of incorporation stated that its sole object was the relief of indigent, aged, or disabled members, and its constitution recited that its purpose was to purchase a home for and to support aged and indigent Odd Fellows in the manner the by-laws prescribed. The by-laws prescribed that any lodge or encampment of the Independent Order of Odd Fellows might become a member by paying one cent a week for each of its members and that such lodge or encampment had the privilege of applying for the admission of inmates, &e. The by-laws further provided that donations should be invested and only the interest used for maintenance. Subsequently the land and home were sold and the proceeds added to the donation fund. — ■ Held, that whether or not the corporation had power to become dissolved by voluntai’y action, such funds could not be distributed among its members.
    Heard on bill, answers, replications and agreed state of facts.
    Erom the bill, answers and agreed state of facts the situation is as follows:
    On the '28th day of April, 1886, there became incorporated under the act to incorporate benevolent and charitable associations (1 Gen. Stcd. p. 1J/-9), a corporation known as the Home for Aged and Indigent Odd Fellows of the State of New Jersey. In the certificate it is certified
    “that the sole and exclusive object of the said incorporation is the relief of such of the members thereof as shall by reason of age and indigence, physical disability, infirmity or accident be rendered incapable of attending to their usual occupation or calling, and also such other charitable and other objects and purposes as may be provided for in the constitution and by-laws of the said association.”
    On April 7th, 1887, the name of this corporation was changed to “The Odd Eellows Home of New Jersey.”
    The act nnder which it was incorporated provided in the first section (Gen. Stat. ¶. IBS § 19)

    "that every association of persons not less than three in number associated for benevolent and charitable purposes * * * are hereby constituted a body politic and corporate in law.” * * *
    By the fifth section of the said áct (Gen. Stat. p. 153 § SO) it was provided
    “that the sole and exclusive objects of incorporations under this act shall be to relieve or support such of the members thereof, or such other persons as shall by sickness, casualty, old age or other cause be rendered incapable of attending to their usual occupation or calling * * * to give and extend benevolent and charitable relief and assistance to persons who are not members or corporators * * * and other charitable objects; any one or more of the above objects may be provided for in the constitution and by-laws of such corporation, which shall have power to provide for such necessary expenses as shall accrue by carrying into effect the said object or objects; and no part of the funds of such corporation shall be used for banking purposes or in any manner except as provided in this act.”
    By the third section of the act (Gen. Stat. p. 150 § 3) it is provided
    “that the estate and property, of what kind soever the same may be. of such association, shall be vested in them as a corporation, and by their corporate name such association shall be able to purchase, receive, take, hold and convey, for the use and benefit of such corporation, and for the purpose of effecting the objects of its incorporation, any lands, tenements and hereditaments, and any sum or sums of money, rights, securities, goods and chattels, by gift, alienation, devise, bequest or otherwise, of any person or persons, bodies politic and corporate.”
    By the second article of the constitution adopted by the corporation it is provided
    “that the purpose of this corporation is to purchase a home for, and to support and maintain aged and indigent Odd Fellows in such a manner as the by-laws may prescribe.”

      “Abticle 3. This corporation shall be composed of Lodges, Encampments and Rebekah Degree Lodges of the Independent Order of Odd Fellows * * * and each lodge * * * belonging to this corporation shall elect one member thereof annually, to represent them in this corporation, in such manner as the by-laws may prescribe.”
    “Abticle 4. Any Lodge, Encampment or Rebekah Degree Lodge may become a member of this corporation upon the payment of such fee and weekly dues, as the by-laws may prescribe, for the support and maintenance of this corporation.”
    By section 1, article 1, of the by-laws, it is provided that
    “each Lodge, Encampment or Rebekah Degree Lodge, members of this corporation, shall * ♦ * elect one representative to serve one year, and shall certify his election.” * * *
    There are then provisions for the representatives meeting at Trenton at a time fixed, .and electing officers who are to hold their offices for fixed periods; and there is then provision for special meetings of the representatives. There is provision that the lodges shall pay their dues quarterly in advance; and a provision is made for nine managers of the corporation.
    Article 12, section 1, provided that no application from lodges or encampments for admission of inmates shall be entertained until they have been members of the home for a period of twelve months.
    “Section 2. All Lodges or Encampments admitted members of the Home, having a membership of one hundred or less, shall be entitled to place one inmate therein; and one inmate allowed to every additional one hundred members; and every Lodge or Encampment wishing to place an extra inmate shall pay the sum of one hundred and four dollars per annum, to be paid quarterly to the Board of Representatives, said Lodge or Encampment to be credited with per capita over and above the even hundred.”
    “Section 3. Inmates not to be admitted beyond a number that the current revenues of the Home will support, to be. determined by the Managers.”
    Sections 4 and 5 provide how applications for admission shall be made, and, among other things, provides that applicants for admission * * must be at least fifty years of age, and unable to support themselves by reason of age and indigence.” By reason of physical disability, infirmity or accident any Odd Fellow, irrespective of age, was admissible. The applications for admission were provided to be signed by officers of the lodge or encampment to which the applicant belonged, and were forwarded to the secretary of the board, and referred to the examining committee of the representatives who report in writing to the board of managers, and then, if the board of managers so provide, the applicant was admitted.
    By section 6 of this article no inmate of the home was permitted to act as a representative or manager, or to take part, directly or indirectly, in the government or its management.
    Article 14, section 1, provided
    “Lodges and Encampments located in New Jersey may be admitted at any time as members of this corporation, on application to the Secretary and upon payment of the required dues; and shall then be entitled to elect a representative for the next yearly meeting.
    “Section 2. Lodges and Encampments shall pay one cent per week for each of their members for the support and maintenance of the Home, payable as per Article 2.”
    “Article 15. When the Home shall become self-sustaining by interest accruing on invested funds the contributions from Lodges and Encampments shall cease and determine.”
    “Article 17. Section 1. All money, bonds, mortgages, securities and real estate, coming to this corporation by bequest, gift or other legal transfer, shall be constituted a permanent fund, the principal of which shall not be expended unless such funds or property shall have been received for a certain purpose set forth in the instrument of writing.”
    . “Section 2. The interest, rents and profits derived from the permanent fund shall be expended for the support and maintenance of the Home, provided that the interest and income received from the bequests, devises or gifts made for a specific purpose shall not be expended for any other purpose than that for which they shall be given.”
    ■ By subsequent sections of this same article there is provision made by which any person, lodge, encampment or society contributing to the permanent fund the sum of $5,000 might endow, a permanent living in the institution, and any member of any lodge or encampment contributing to the permanent fund the sum of $1,000 might endow a permanent living for themselves in the institution.
    There appear to have been twenty lodges or encampments that elected representatives and paid their contributions at the inception of the corporation. From time to time during its existence some of these dropped out by resignation or failure to continue to pay, and other lodges and encampments elected representatives and made their contributions in accordance with the constitution and by-laws; so that at the time of the passage of the resolution concerning the distribution of the corporation’s property, which will be hereafter set forth, there were fifty-seven lodges or encampments electing representatives to and paying contributions to the corporation.
    The corporation purchased several pieces of real estate, and upon one of them, near Trenton, was erected or reconstructed a house in which the inmates were lodged and fed.
    The books and records of the corporation containing entries previous to January 8th, 1896, appear to have been lost; but from the books in its possession it appears that from January 8th, 1896, down to the time of the filing of the bill in this suit the donations, bequests and other gifts from various sources to the defendant corporation aggregated $14,288-.59. In 1898, the Odd Bellows Home of New Jersey offered to transfer its property for a nominal consideration to the Grand Lodge of Odd Bellows of New Jersey, so that the latter might continue to operate the home instead of tlie Odd Bellows Home of New Jersey continuing to do so. There was a long series of negotiations between the two bodies, and finally the grand lodge refused any such arrangement. Eventually, and in 1907, the grand lodge agreed to buy the real estate belonging to the Odd Bellows Home of Hew1 Jersey for what it estimated its -true value to be, namely, $12,000, and this was accepted by the Odd Bellows Home of New Jersey, and a deed was given by the latter on the 25th day of January, 1908, to the Grand Lodge of Odd Bellows of New Jersey for its property situate near Trenton by which the same was conveyed in fee-simple, unencumbered by any trust of any description.
    The $12,000 received from the grand lodge by the Odd Bellows Home of New Jersey, together with $3,219.67, which the latter had on hand, makes a total of $15,219.67.
    At a meeting of what is called the “Board of Directors” (although I do not find any provision for any such board) held on the 8th day of January, 1908, the following resolution was adopted by a vote of ten to one:

      “That there be paid out of the funds that will be on hand after receiving' payment for our property to each Lodge now holding membership an amount equal to one dollar for each member as of October 1, 1907, as a payment on account of what would be due on a final division.”
    The complainant, Sumner Lodge, Ho. 180, I. O. O. E. (which was a member of the Odd Eellows Home of New Jersey), then filed its bill to prevent this method of distribution of the funds.
    On the 11th of March, 1908, there was held a meeting of the representatives at which forty-nine attended. At that meeting there was passed a resolution reciting that it was deemed advisable and most for the benefit of the Odd Eellows Home of New Jersey that the same be dissolved, "and that a meeting to pass on this would he held on Wednesday, the 29th of April, 1908, and that notices be given according to law. On the 28th of April, 1908, the meeting was held and fifty-one representatives attended. At that meeting a motion was passed that the corporation be dissolved and that the directors be instructed to discharge all indebtedness and expenses, file the necessary papers, and distribute the assets in accordance with the provisions of the resolution previously adopted at this meeting. That resolution was as follows:
    «* * * That the funds of this corporation be distributed amongst the various Lodges and I-tebekah Lodges who are now members of the' Home, according to the amount actually paid in as dues by such respective Lodges and Rebekah Lodges from the time of the institution of the Home until the present day, as required by the constitution and by-laws of this Home. The amount to be received by each Lodge or Rebekah Lodge is to be such percentage of the assets now on hand, as the amount paid in for dues by each Lodge or Rebekah Lodge shall bear to the total amount paid in as dues by the present membership of the Home,”
    and that the board of directors be instructed to take the steps necessary to put the same into effect.
    At a subsequent meeting of the “directors,” held on the 27th of Hovember, 1908, the following resolution was adopted:
    “That owing to the divergent and seemingly irreconcilable views held concerning the distribution of our funds, it is deemed for the best interest of all concerned that a definite judicial determination of the questions at issue be had; to that end he [referring to the counsel retained on behalf of the corporation] is instructed to endeavor to arrange with counsel for complainant [referring to the complainant in this suit] for a statement of fact, covering every phase in controversy, to be submitted to the Court of Chancery for determination, upon proper hearing of said cause.”
    After the passage of the resolutions which have just been quoted the complainant in this suit amended its bill so as to include such resolutions; and then prayed that the court should determine whether the assets could be distributed in accordance with such resolutions, and if it determined that they could, that it then order such distribution. It added another prayer, asking for the ascertainment and determination and decree of this court, whether or not the funds of the Odd Fellows Home of New Jersey can legally be distributed among the members of the said home, and, if so, that the complainant’s share be ascertained in the manner set forth in the resolution adopted by the said home at the meeting of April 29th, 1908, or in such other manner as shall be equitable and just.
    Because of some doubts which arose 'as to whether or not the Grand Lodge of Independent Order of Odd Fellows of the State of New Jersey should not be made a party defendant, it was thought best that it should be, and it accordingly was.
    It seemed possible, before the facts were more fully developed, that when the Odd Fellows home transferred the home to the grand lodge, the latter became chargeable with the execution of a trust with respect to the same; and that it might be that any funds donated to the Odd Fellows Home of New Jersey should be held for the benefit of whoever was carrying on that -home — in this instance, the Grand Lodge of Independent Order of Odd Fellows of the State of New Jersey.
    The two defendants, the Odd Fellows Home of New Jersey and the Grand Lodge of Independent Order of Odd Fellows of the State of New Jersey, filed answers. The answer of the Odd Fellows Home of New Jersey admits all the facts in the bill in so far as they agree with the statement of facts stipulated by the counsel in this suit. If denies that all the moneys received either from donations or otherwise were honestly and conscientiously expended for the maintenance and support of the home, but, on the contrary, states that of the donations received, $1,000 was expended to pay a part of the principal of certain mortgages on the said home property, and $2,500 was invested in savings banks and is now held by this defendant in cash, together with $4,000 which this defendant has received back by the payment of the $1*2,000 purchase price of its home property, and that the balance of the donations received by this defendant, which, together with the $6,500, amount to a larger sum than the entire assets of this corporation now on hand, were mingled with the money received by this defendant from time to time as dues, and that this commingled fund was honestly and conscientiously expended fox the maintenance and support of the home, except such part as is left of said commingled fund which is represented by the $15,219.67’ now on hand. This defendant denies that there was any understanding or arrangement with the grand lodge by which the latter should have any interest or right in the assets of the Odd Eellows home corporation. It denies that the complainant is entitled to any distribution of any part of the assets, and it asserts that 'it is impossible to carry out the distribution as provided for in the' resolution of this defendant because it asserts that there are no assets or funds to which the complainant or the other lodges would be entitled.
    The other defendant, the grand lodge, denies that it took the property under any trust, asserts that it gave full value, and owns the same in fee-simple, and prays to be dismissed.
    Since the controversy is really with respect to the defendant the Odd Eellows Home of New Jersey, I shall, in using the term “defendant,” refer to that corporation except in those eases where I specifically refer to the other defendant, the Grand Lodge of the Independent Order of Odd Eellows of the State of New Jersey.

      Messrs. Melosh & Morten, for the complainant.

      Mr. Peter W. Stagg, for the Odd Eellows Home of New J ersey.

      Mr. Charles A. Woodruff, for the Grand Lodge of the Independent Order of Odd Eellows of New Jersey.
   Garrison, V. C.

From the foregoing statement of facts it will appear that the defendant the Odd Fellows Home of New Jersey has undertaken the proceedings for voluntary dissolution, and, incident thereto, has provided for the distribution of its assets.

The first question requiring consideration is whether there is any statutory authority for such proceedings. If there is not, it is quite clear that such corporation has no power, by the action of its stockholders and directors, or either, to voluntarily dissolve itself. Benedict v. Columbus Construction Co. (Chancellor McGill., 1891), 49 N. J. Eq. (4 Dick.) 23.

The act under which this corporation became incorporated was entitled “An act to incorporate benevolent and charitable associations.” Rev. 1875; Gen. Si,at. p. 149. By a supplement approved on the 12th of March, 1878 (Gen. Stat. p. 151 § 12), provision was made for proceedings for dissolving such associations. This act and this specific supplement were included among acts repealed by an act entitled “An act to repeal sundry acts relating to associations not for pecuniary profit,” which was approved on the 22d of March, 1899. P. L. .1899 p. 190 § 8. Whether this attempted repeal is efficacious in view of the title of the act is, I think, a very grave question. Montclair Military Academy v. State Board of Assessors (Supreme Court, 1900), 65 N. J. Law (36 Vr.) 518.

Furthermore, in the act of 1899 (at p. 197), there is a section reading as follows:

“Nothing herein contained shall impair or annul any vested rights, privileges, or powers heretofore obtained and used under authority of said acts or any of them, and all corporations which have heretofore availed themselves of the provisions of said acts may continue to enjoy the rights and advantages which they now enjoy and exercise by virtue thereof.”

The intention of the legislature is quite plain. By an act entitled “An act to incorporate associations not for pecuniary profit,” approved April 21st, 1898, they made provision for the incorporation (and by the fifth section for the reincorporation) of all corporations of a fraternal, religious, beneficent and charitable kind, evidently intending thereby to bring them all under the provisions of one general statutory rule; and therefore, in the next year, by the act of 1899 (at p. 189), they repealed all existing legislation under which societies or associations of this kind had previously been incorporated.

Since, however, these previously incorporated bodies had been provided for by acts of various titles, the doubt, heretofore expressed by me and by the supreme court in the cited case, exists as to whether the repealing act is effective, its title being perhaps not constitutionally adequate. The act of 1898, just referred to, also provides for dissolution, but only of corporations incorporated (or reincorporated) under it ; and therefore that provision does not apply to the defendant corporation now being dealt with. If, however, it should be determined that the title of the repealing act was adequate, and that by force of such act the act under which the defendant corporation was incorporated was repealed, we still have to deal with the provision in the act of 1899, which has been quoted in full, and which reserves to existing corporations vested rights, privileges or powers.

I incline to the opinion that since one of the rights, privileges or powers (or, perhaps, in the language of the section, it might be proper to call it an “advantage”) was the right to dissolve itself by voluntary action. The question therefore to be considered (assuming that the law will be decided in favor of this corporation having the right to voluntarily dissolve' itself) is whether it may, upon dissolution, distribute its assets among its members. The specific thing- before the court, under the bill and answers, is whether it may distribute them in accordance with the resolution adopted at a meeting of the representatives of its members. That resolution, it will be recalled, provided that the assets on hand should be distributed by giving a certain proportion to each of the lodges or encampments now members, such proportion to be arrived at in a certain manner in said resolution set forth.

It will be remembered from the recital of facts that this corporation, under the act incorporating it, could not use its funds in any other manner except as provided in the act; that by its certificate of incorporation it set forth that its sole and exclusive object was the relief of indigent, aged or disabled members'. By its constitution it recites that its purpose is to purchase a home for and to support and maintain aged and indigent Odd Fellows in the manner the by-laws prescribe. The by-laws prescribe that any lodge or encampment of the Independent Order of Odd Fellows might become a member by paying one cent a week for each of its members, and that such member, i. e., the lodge or encampment, had the privilege of applying for the admission of inmates, the essential details concerning which application and admission of such inmates having been heretofore set forth.

The proofs show that the maintenance of the home always cost more than the receipts from the dues of the lodges which, at any. one time, belonged to or were members of the defendant corporation. The so-called members of the corporation varied from year to }rear. Lodges would join and pay their contributions so long as they pleased, and then would cease paying their contributions, and thereupon cease to be members; and other lodges which had not theretofore paid dues would commence doing so and would thereupon become members. The deficit arising from the excess of expenditures over income from dues was made up out of the donations or gifts heretofore alluded to.

As has been explained, the records of the corporation have been lost, but from those which have been preserved it appears that such donations, for a period from January 1st, 1896, to June, 1908, amount to $14,388.59.

The by-laws in the seventeenth article provided that all such donations should be invested and only the interest used for maintenance. But evidently the exigency of the circumstances caused an entire disregard of this provision. It is the fact, however, that the amount of money now 'in hand almost exactly corresponds to the amount of donations that the corporation, by its present records, shows that It has received.

It is entirely clear that such donations were made to this corporation for its charitable purposes. Whether the work in which this corporation engaged was a charity in the legal sense is a question of doubt and difficulty; but that it was a charity in its popular sense there can be no doubt.

There was no suggestion a^where that anyone was to make any profit out of its operation. Whether the providing of a home for the indigent, aged or disabled members of a certain fraternal order or society is within the limits of a “charity” as defined by the courts was debated at great length by counsel, and I find that there is a contrariety of decision in the courts. But I do not find it necessary for me to determine this question in this suit, and I therefore conceive it improper for me to indulge in any expression of my personal views concerning this question. Whatever may be determined to be the proper thing to do with these funds, I am clearly of the opinion that it is improper for them to be distributed among the lodges who happened to be members of the defendant corporation at the time that the dissolution proceedings were undertaken.. This, of course, applies not only to the specific method of distribution provided for in the resolution of April 28th, 1908, which the complainant insists is the proper one and which the defendant, curiously enough, now disclaims any right to make; but also to any other method or manner of distribution of these moneys among the lodges or encampments aforesaid.

It is the fact that whatever moneys were paid to this corporation by the lodges or encampments who, at various times, since its corporation, were members thereof, were used for the purpose for which they were contributed, namely, the support and maintenance of the home. All moneys contributed for this purpose as dues, and all moneys donated were, by the organic law of the corporation, by the specification in its charter or certificate, by its constitution and by-laws, to be devoted to but one purpose, namely, the relief and support of the aged, indigent and disabled members of the lodges who should become-members.

Nowhere in the organic law, or in any other law relating to this defendant corporation, can there be found to be any greater or other right in the so-called members than to obtain relief for their aged, indigent or disabled members as aforesaid. Under these circumstances, and with the law as existing, I do not see how these so-called members have any right to take the assets of the corporation to themselves by any form of proceedings. I do not, therefore, decide, because I do not have to, whether, under existing law, this corporation has the power to become dissolved by its voluntary action, or has not such power. I do not decide, because I should not in the present state of the pleadings and with only the present parties before me, what the corporation should do with these funds. I do decide that they may not be distributed, in accordance with the resolution of the defendant corporation passed on the 28th day of April, 1908, or in any other manner, among the members of- the defendant corporation.

Whatever funds are now in the hands of the defendant corporation .arose out of donations made to it; these were undoubtedly for the benevolent, not to say charitable, purposes which it was carrying on. I do not find that the so-called members thereof have any right to divert those funds to their individual uses, or, by any proceedings, to obtain these funds from the defendant corporation and take them to themselves.

If this corporation has the right to dissolve under the law, and is unable to properly dispose of the fund without the interposition of this court’s aid, it should make such proper application to this court, bringing the proper parties before it, and raising the issue in a proper manner to have this court then pass upon the question which would then have to be considered. There is no such issue now in the case. It may be that if the moneys cannot legally be .distributed among the so-called members, the defendant will be able, without any aid or direction from this court, to fulfill its fiduciary duties respecting said funds. In any event, it is improper, under the present pleadings and issues, and 'with the present parties as the only ones, to discuss, much less dispose of, the important and difficult questions involved.

The present bill, which prays for an ascertainment of the complainant’s share and for a distribution of the funds among the members, must be dismissed.


source: Caselaw Access Project

author: Garrison, V. C.

license: Public Domain

text:
    Leonard Richards v. Robert L. Shaw and The Second National Bank of Jersey City.
    [Decided September 7th, 1910.]
    1. To justify a bill of review on the discovery of new matter, it must appear not only that the matter is new, but that the party could not have known thereof before the trial by the use of reasonable diligence.
    2. A decree giving affirmative relief to defendant on an answer alone will not be reversed on appeal merely because a cross-bill was not filed, where the case was fully tried on the merits and the evidence warrants the decree.
    3. Where the court gave affirmative relief to defendant on his answer alone, it will open the decree on application and make a new one on the evidence admitted on giving defendant the right to file a cross-bill, and the new decree will be so dated that complainant will be within timé to appeal from it.
    4. A complainant applying after two years or more that the case was in litigation to prove a matter within his personal knowledge and concerning his personal conduct may not have the decree against him opened to enable him to give testimony on that point.
    5. A decree will not be reopened on the application of the defeated party to permit him to produce an admittedly perjured witness to prove a new basis for relief or to producé a witness admittedly not knowing what he has been testifying about.
    6. An application to reopen a case for further proof after rendition of final decree held not supported for failure to show due diligence to procure at the trial the testimony relied on.
    7. Where a note was an accommodation paper as between the maker and payee, a third .person seeking to hold the maker on the note has the burden of proving that he gave consideration for the note.
    TJpon application to file a bill of review, or reopen the case for further proofs.

      Messrs. Hudspeih & Lane, for the complainant.

      Messrs. Vredenburgh, Wall c& Carey, for the defendant Bobert L. Shaw.
   Garrison, V. C.

This suit was commenced by a bill filed on the 16th day of October, 1906. Its object was to foreclose a mortgage made by Eobert L. Shaw to William Hogencamp, dated August 27th, 1902. The mortgage, by its terms, was given to secure the payment of a promissory note for $13,000 made by Shaw to Hogencamp. The case was referred to me for trial, and was set down for hearing on the 14th day of May, 1907, on which day the complainant made out his prima facie case, which consisted wholly of the proof of the note and mortgage. The defendant Shaw began putting in his proofs, which were to the effect that the note upon which the mortgage was based was without consideration to him, being an accommodation to Hogencamp (excepting to the extent of $1,000), and the complainant, after the defendant had rested, called one witness, Hogencamp, in rebuttal.

After Hogencamp, as a witness on behalf of the complainant, had given considerable testimony, it was considered best to have the case go off in order to enable the complainant to make amendments to the bill. Such amendments were made, and the case again came on for hearing on the 6th day of May, 1908, and the hearing was continued on the seventh, eighth and fourteenth days of that month.

The court announced its conclusions upon the issues involved, and on the 14th day of September, 1908, the form of the decree having been theretofore presented to the complainant by the defendant Shaw, the parties, upon notice by Shaw to the complainant, appeared before the court, and Shaw asked that the decree in the form in which he had drawn it should be signed. Counsel for the complainant stated that there was no objection to the form of the decree, but that they might desire to apply to reopen the case for further proofs; and the court, after making a memorandum that the form was unobjectionable, laid the matter of signing the decree over to September 21st, 1908, to enable -counsel for the complainant to present whatever they desired to present in aid of an application to rehear the case.

On the 21st of September it was again laid over at the complainant’s request to tire 28th day of September, 1908, and on that day the complainant’s counsel, stating that they did not desire to avail themselves of the opportunity to present an application for a rehearing, the final decree, in the form that the complainant stated was unobjectionable to him, was advised.

On the 13th of September, 1909, the complainant filed a petition for leave to file a bill of review. On September 27th, 1909, he filed another such petition; and on November 29th, 1909, he filed a supplemental petition for leave to file a bill of review, or, in the alternative, to have the decree set aside and the case opened for further proofs.

Since the last-named date the court has heard counsel at length at various times, and has permitted them to take as much time as they desired to prepare and file their briefs. Voluminous and comprehensive briefs were carefully prepared and furnished me.

There does not seem to be any dispute concerning the principles of law to be applied; the only dispute is as to the result of their application.

The following authorities show the existing law and procedure upon the matter of granting leave to file bills of review.

“When application is made to file a bill of review upon the discovery of new matter, the rule is that the matter must not only be new, but must be such as the party, by the use of reasonable diligence, could not have known; for if there be any laches or negligence in this respect, that destroys the title to the relief.” Perkins v. Partridge, 30 N. J. Eq. (3 Stew.) 560. See, to the same effect, Story Eq. PI. § 414-

“Such a bill” (of review) “must rest * * * upon some new matter which has been discovered after the decree, and could not possibly have been used when the decree was made.” Watkinson v. Watkinson, 68 N. J. Eq. (2 Robb.) 632. See, to the same effect, Bacon’s ordinances, cited with approval in Traphagen v. Voorhees, 45 N. J. Eq. (18 Stew.) 42.

In Feinberg v. Feinberg (Vice-Chancellor Grey, 1905), 70 N. J. Eq. (4 Robb.) 424, it is said: “The rule on applications for a new trial before a vice-chancellor is governed by the principles which are recognized in the law courts in cases of motions for new trials after the verdict of a jury.”

The issue of fact which this court tried and determined against the complainant was with respect to the consideration of the note of Eobert L. Shaw to William G. Iiogencamp, dated August 27th, 1902. This court found that that note (excepting as to $1,000 thereof) was an accommodation note; that Iiogencamp, to whom it was given as an accommodation, got it discounted at the Second National Bank, of which he was president, and subsequently the undisputed testimony showed that Iiogencamp had paid the bank and taken up the note and the mortgage, and that the latter, in his hands, was unenforceable.

(I shall leave out of consideration the $1,000 of this mortgage for which there was initially consideration since that is not material in any way in the consideration of the questions involved in this application.)

The result reached, as above stated, was after a prolonged trial, during which every opportunity which the most insistent desire to get at the truth could devise was given the complainant. Iiogencamp was on the stand for days. His books and papers and those of the bank and the former officials of the bank who knew anything about the matter, were all completely ,at the complainant’s disposal. So desirous was the court to get at the facts that practically every rule ordinarily enforced with respect to regularity of procedure was disregarded in favor of the complainant. He was permitted to disregard the order of proof; to examine witnesses, and after they had been cross-examined and the strength and force of their testimony in the • complainant’s favor had been weakened or destroyed, he was permitted to reexamine them as. if on direct examination. Witnesses upon most important points were produced by the complainant, examined and cross-examined, and left the stand, and after the lapse of hours, and even in some instances, of days, these same witnesses were permitted to be put back upon the stand by the complainant to give new versions of the same subject-matter, and to add new proofs concerning it. The complainant, during the course of the trial, shifted the theory of his ease three or four times, each new basis of his right being destructive of the previous one. He would advance a theory, produce proofs to sustain it, and rest upon it until it was demonstrated to be unstable, and would then abandon that one and bring forward another, which, in turn, was fortified by proofs and maintained until shown to be untenable.

The various petitions for permission to file a bill of review are based — first, on an alleged error in the decree (which it seems gives affirmative relief upon an answer alone); and second, upon alleged newly-discovered evidence.

As to the first point. The form of the decree was unobjectionable to the complainant, and it may be that he is estopped, in view of his failure to object in time, to now raise this point. In any event, by opening the present decree and permitting the defendant to now file a cross-bill, the completely tried case will afford a proper basis for the decree as made, and the authorities hold that this is proper procedure. Dayton v. Melick (Chancellor Runyon, 1876), 27 N. J. Eq. (12 C. E. Gr.) 362; Fiacre v. Chapman (Chancellor Runyon, 1880), 32 N. J. Eq. (5 Stew.) 465; Petty v. Young (Court of Errors and Appeals, 1887), 43 N. J. Eq. (16 Stew.) 654; Chancellor v. Sieberlich (Vice-Chancellor Walker, 1909), 75 N. J. Eq. (5 Buch.) 501.

A decree giving affirmative relief to defendant will not be reversed on appeal merely because a cross-bill was not filed where the case was fully tried out on the merits and the evidence warrants the decree. Vandeveer v. Holcomb (Chancellor Green, 1864), 17 N. J. Eq. (2 C. E. Gr.) 90.

However, I will adopt the following practice so as to accomplish two results: I will, upon this petition (or if not proper upon this, then upon a petition of the defendant Shaw), open the final decree and make such new one on the proofs now in as I think proper, giving the defendant Shaw a right to file a cross-bill, if that is necessary, which new decree will be of such a date that the complainant will be within time to appeal from it, if he so desires. This will give to each side the rights which I think should be preserved to them.

As to the second matter advanced by the complainant, I have determined upon careful consideration of the proper principles to be applied and the facts to which they should be applied, not to grant permission to file a bill of review, or to reopen the case for further proofs.

I shall not attempt to go extensively into the pleadings, proofs, happenings at the trial, and the very voluminous petitions presented by the complainant. If my reasons are good, the facts upon which they are based are easily ascertainable, and are, indeed, scarcely, if at all, debatable.

The complainant is Leonard Eichards. He has never appeared personally in the ease in any way from its inception to this date. The undisputed, unquestioned testimony adduced by him at the trial from the mouth of Haskins, the former cashier of the bank, of Hogencamp (its former president and repository by reason of personal participation of practically all knowledge concerning this matter), and by the books of the bank, was that the note and mortgage in suit were paid off to the bank in cash by Hogencamp long before the complainant got any title to the said note and mortgage. The note in question at the time of the first hearing was in Hogencamp’s, not the complainant’s, possession. Fow, in so far as complainant’s present application and his right to have it granted is based upon the allegation that he got the note and mortgage directly from the bank, and that the latter never parted with the same to Hogencamp, but always held the same as collateral, and that Hogencamp did not pay the bank for the same, I am clearly of opinion that the complainant is not entitled to the slighest consideration. When the complainant produced Hogencamp as his witness at the first hearing on the 14th of May, 1907, Hogencamp swore in answer to the questions of complainant’s counsel that he had paid the bank in full for this note and mortgage, and that they were transferred from the bank because of such payment by him to the bank. This was almost exactly a year before the next hearing, and at that hearing Hogencamp swore to exactly the same thing, as did also Haskins, the bank’s former cashier. And .they pointed out entries in the books of the bank, which they testified demonstrated the truth of their testimony.

Eichards, now, more than two years after these facts were first put in evidence by him, and more than a year after they were repeated and reinforced by his witnesses, comes forward and says:

“That is a very material point in my case. It is not true, as sworn to by my witnesses and demonstrated by them from the books of the bank. I personally obtained this mortgage directly from the bank by purchase.”

This, it will he observed, is with respect to something absolutely within the personal knowledge of the complainant and concerns his own personal conduct; and if important to be proven, could at any moment during all the two years and more that this cause was in litigation have been proven by his own oath. Eor him to omit, neglect or refuse to prove this matter of personal knowledge is determinative of his right to now urge it as a basis for reopening the case. He cannot now be permitted to reopen the decree for the purpose of permitting him to give testimony upon this point. I can conceive of no valid argument or reason which would permit such a practice. The reasons against it are too obvious to require statement. They immediately arise in every legally trained mind which considers the question.

The other alleged newly-discovered evidence consists of a letter and some checks which Hogencamp had, and some books, checks and the like which the bank had, and another entirely new and different explanation of the whole transaction by Hogencamp, without which latter theory and explanation the other proofs would be meaningless and valueless. In addition to which the new theory and explanation to be advanced and made by Mr. Hogencamp requires that he shall unprove a great deal, if not everything previously sworn to by him, and must demonstrate that he was wrong in practically everything heretofore sworn to by him, which contradicts (as most of it does) his present latest theory.

Laying aside for the moment the consideration of the question as to whether any of the documentary proofs now sought to be given such weight are within the rule of newly-discovered evidence applicable in this ease, the first consideration must be as to the reproduction of Hogencamp as a witness. It is admitted by counsel for the complainant — and if not formally admitted, is too plain to be denied — that the success of the new effort to prove a good consideration for the note, and hence, the mortgage, rests, in the last analysis, upon Hogencamp and Hogencamp’s oral testimony. The complainant now offers an entirely novel explanation of the whole transaction; and it is from the mouth of Hogencamp and Hogeneanxp’s testimony concerning the various documentary proofs offered that the truth of this new theory is to be demonstrated. The letter, the various checks, the entries in the books, are all meaningless and without force to support the complainant’s case without Hogencamp’s oral explanation of them. Hogencamp, as has already been alluded to, has been on the stand for days. From the date of the first hearing, May 14th, 1907, to this time^ he has been upon the stand six times, and made two, if not three, affidavits, attached to the petitions. He has constructed for the complainant and had demolished by opposing proofs at least as many as six different and mutually destructive theories. The counsel for the complainant was speaking well within the truth and most charitably when he said that “it appears from the testimony that the said William Hogencamp does not in fact know what he is talking about.”

That is exactly the impression that he has made upon my mind upon each of the six occasions upon which he has talked about the matter in this case under oath.

The complainant now asks the court to reopen the case for the purpose of hearing another theoiy of Hogencamp’s — a witness already utteriy discredited, from whom the complainant has already had two years’ time and six opportunities upon the witness-stand to exhaust all knowledge concerning this case which he may possess — who has already established and disestablished three or four different and mutually repugnant theories concerning the consideration of the note, and who now swears that they were all false and the only true one is contained in his latest explanation. It was certainly mild to say of such a witness that “he does not know what he is talking about.” It would not, of course, do for the complainant to admit that Hogencamp, in his many previous and various attempts to show the consideration of this note, had perjured himself — because even the zeal of counsel would stop short of asking the court to reopen a case for the purpose of permitting him to prove newly-discovered facts in the possession of a witness whom he admitted to be a perjurer. But is the complainant any better off, so far aá this appeal to the court is concerned, if we agree with him that the trouble with the witness is not that he consciously prevaricates, but that he really does not know? The best that can be said for him is that in his desire to have the complainant succeed and to make this mortgage enforceable he is willing to swear to anything which would accomplish those purposes. He would swear to any fact to which other facts would fit in and make a case. Since he does not know what the truth is he is not perjuring himself — he is merely swearing about things of which he knows nothing.

One or the other of these two alternatives is open to the complainant. Each leads to identically the same result. I can no more conceive the propriety of reopening a case in order that an admittedly perjured witness may be produced to prove a new basis for judgment than I can for similarly acting with respect to a witness who admittedly does not know what he is talking about.

How we will return to the question previously passed, as to whether the so-called newly-discovered evidence comes within this rule. Of course the new theory of Hogencamp and what he now says he will swear to does not come within the rule. I shall not waste space in further demonstrating that. But do the letter and the checks now produced by Hogencamp and the checks, slips and books now produced by the bank? I do not think they do. The complainant,'it will be remembered, has never appeared in the case at all. He is admittedly represented by the attorneys who represent the bank. His personal participation is limited to affidavits attached to the petitions for review and reopening the case. In such affidavits he twice swears in practically identical language that he acquired the note and mortgage by purchase of the same from the Second Hational Bank of Jersey City, and “he paid the said bank the purchase price therefor.” He did not appear as a witness. He did not, so far as the proofs show., make the slightest personal effort to obtain any proofs to establish his case, and it is not shown that he gave one dollar of consideration for the note and the mortgage he seeks to enforce. His only testimony is that he paid the purchase price therefor without disclosing whether that was anything of value or not.

Such a complainant does no't stand in a very favorable light before the court, who, for two years, has shown itself ready and anxious to administer justice in his behalf and has extended to him not only every right he could possibly claim but every, grace within its power. He not only does not show that he personally is out one dollar by reason of the court’s decree, but shows affirmatively by his conduct that he is so careless of his rights and of his obligations to the court who is to pass upon his rights that he does not think it worth his while to seek evidence necessary to prove his case.

The sources of proof open to the complainant were the bank and Hogencamp. The bank, by its answer herein, has allied itself in all ways with the complainant, and joined with him in affirming the validity of the note and mortgage in his hands. Hogencamp, from beginning to end, has shown himself in every way that a man could as more than ready, more than willing and most zealously anxious to have the complainant succeed.

Early and late, from the first time he was sworn in the case on May 14th, 1907, to the last time he made an affidavit on November 15th, 1909, this has been his open, notorious and unquestioned attitude.

The complainant, presumabfy, from the time of the filing of the answer to the original bill, November 16th, 1906 — certainly from the time of the first hearing, May 14th, 1907 — knew that he must assume and carry the burden of proving that the note in question on which the mortgage was based was enforceable against Shaw in his hands, although at the time it was given it was an accommodation note between Shaw and Hogencamp— in other words, he must prove that a third party had given consideration for this accommodation note and could hold the maker. He knew that Hogencamp and the bank were the sole sources of information open to him; and, as before stated, he knew what has been demonstrated obviously throughout the case, that he was more than welcome to every particle of information and evidence the bank and Hogencamp possessed, whether it was oral or documentary. As before adverted to, every opportunity was given the complainant in his rebuttal to meet the defendant’s case. The court even, from time to time, took recesses in order to enable counsel for the complainant to send or go to the bank for more books and papers. Every time that a new explanation by Hogencamp called for other books and other papers from the bank they were immediately forthcoming.

It seems clear to me that here was a situation in which all the information contained in these two sources (namely, Hogencamp and the bank) was absolutely at the disposal of the complainant’. If he had been diligent in preparing his case, all the proofs which he now says he has newly discovered in the possession of the same two witnesses previously produced could have been found and used then. The trouble with the complainant is that he has shown so little interest in the large sum of money represented by this note and mortgage that he has paid no attention to the matter. Ho sound or believable explanation was presented by him concerning the consideration given for the note. He grasped at the haphazard explanations of Hogencamp and based his case upon each one of them until its instability was demonstrated. Either he or Hogencamp has now thought of the new theory, and evidence from the same sources always open to the complainant are proffered to sustain it.

I do not think there is the slightest successful refutation of the contention that everything now said to be newly discovered is only so because it was not searched for before. That does not make it “newly discovered” within the rule.

The result, therefore, of my most careful consideration of all the circumstances is that the prayer of the petition for leave to file a bill of review must be denied, and the prayer to reopen will be granted only to the extent of reopening to set aside the present decree and to make another conformable to the pleadings and issues , as they now are, or as the court may permit them to be amended.

To permit a retrial either by reopening the decree for that purpose, or by permitting the filing of a bill of review, under the circumstances of this case, would be, in my judgment, a violation of fundamental principles respecting litigation, the maintenance of which principles is absolutely essential to the due administration of justice.

I entirely disapprove of viewing litigation in the light of a game where there are pitfalls for the unwary and penalties for the unfortunate; and the court merely sits as an umpire to see that the rules are enforced. Whatever may once have been the attitude of the courts in this respect, it is not now favorable to so viewing litigation. With due regard to the rules essential to be preserved in formulaing the issues and adducing the legal proofs, and giving each side full opportunity to present its case, the court strives to ascertain the truth and apply the legal remedy applicable thereto. But there are essential rules, without which orderly litigation and the settlement of legal disputes would be impossible. In my view such essential rules would be violated if this case should be reopened upon these petitions.

In conclusion, it will be borne in mind that the complainant is not shown to have a dollar at stake; that the note in question was admittedly and unquestionably, as between the payer and payee thereof, an accommodation of the latter; that the burden of showing that a third party could hold the-accommodation maker because of having given consideration for the note tvas on the complainant; that this was not a case where a complainant was shown innocently to have advanced money to a mortgagor who is seeking by technical defences to prevent the collection of the debt out of the pledged property. The complainant was advised years ago of the defence; came presumably prepared, or was legally required to so come, to meet it; had every possible source of information at his command, and utilized what he pleased of such; was unsuccessful in his attempt to establish his case, and is now seeking to wipe out all this and begin over again, using the same witnesses and the same sources of proof. That he should not be permitted to do this is my feed conviction.

I will order accordingly.

Counsel for the defendant Shaw met the various allegations advanced by the complainant, and insisted that if all the newly-discovered matters are considered in the light of the previous proofs and the affidavits now produced they would not alter the judgment of the court. I have not considered them. I do not think I should for the reasons above given.

The order in this matter should be settled upon notice.


text:
    Annie Sheehan v. Cornelius Sheehan.
    [Decided September 7th, 1910.]
    1. The term “collusion,” as used in the law of divorce, is not to be limited to a corrupt bargain to impose a case on the court, either by the suppression of evidence or by the manufacture thereof, but includes any agreement between the parties as the result of which no defence shall be made to the dissolution of the marriage tie which would not otherwise be dissolved, in violation of public policy.
    2. An agreement between husband and wife that the wife should procure a divorce, and that no defence should be made, the husband having furnished money to the wife to bring the suit, was collusive, requiring the dismissal of the suit, without prejudice, however, to the right to institute another suit not collusive.
    Heard on petition for divorce ex parte.

      Mr. Patrick J.- Dooley, for the petitioner.
   Garrison, V. C.

The petition in this canse is for' a divorce on the ground of desertion.

The evidence discloses that there is a child and that the wife is wholly without means of support. The petition does not mention the fact that there is a child, and does not pray for any support for the wife or child.

The testimony showed that the husband gave the lawyer of the wife $125 before this suit was brought for the purpose of compensating him for bringing a divorce suit against the husband on the wife’s behalf and securing a decree against the husband.

Shortly after the marriage the husband failed to support the wife and was proceeded against by the poor master and compelled to pay her a weekly sum by the order of the police court. He gave bond, absconded, the bond was forfeited, and the wife was paid the amount thereof by the bondsman. Subsequently, the husband returned to this state and he and the wife agreed that she should obtain a divorce, he agreeing to furnish the money to her for this purpose. He did not keep this promise, and she again proceeded against him, and he was arrested and placed in jail. While in jail he and she again agreed that she should proceed to obtain a divorce, and that he would furnish the money. He procured friends or relatives to raise the amount agreed upon ($125), and this sum was paid to a lawyer who, on behalf of the wife, filed this petition.

The petition was filed after the Divorce act of 1907, and has appended the necessary affidavit in which the petitioner avers that

“her said petition is not made by any collusion between her and the said defendant, but in truth and good faith, for the causes set forth in the petition.”

A casual reference by the wife in giving her testimony to the payment of money to her lawyer by her husband did not, of course, escape the observation of the astute special master who was hearing the case, and further questioning by him brought out' the testimony which I have summarized in my findings of fact just above stated. The master proceeded to give this question the care and consideration which its importance required, and he reached the conclusion that the ease was governed by the principles laid down in Pohlman v. Pohlman (Vice-Chancellor Pitney, 1900), 60 N. J. Eq. (15 Dick.) 28, and Drayton v. Drayton (Chancellor McGill, 1896), 54 N. J. Eq. (9 Dick.) 298, and that, applying those principles, there was no collusion.

In passing, it should be noted that each of the cited cases was before the 1907 Divorce act, and that the requirements are materially different in that act and the previous act. The subject is one of such importance that it was thought best that there should be a reported decision on the subject-matter involved.

The doctrine of connivance is not involved at all; there is no suggestion that there was any “consenting” (by one spouse) “to evil conduct in the other whereof he afterwards complains,” which is the definition of connivance given by Bishop. 2 Bish. M., D. & S. (ed. of 1891) p. 110 § 203.

The doctrine of collusion, however, is directly involved. Bishop (Ibid. p. 128 § 249) says that collusion

“in divorce law is a corrupt combining of married parties to procure a sentence or judicial order by some false practice; as, for one of them to appear, to, or, in fact, do what otherwise would be ground for divorce, or in any way to deceive the court in a cause, thus seeking its interposition as for a real injury.”

And in section 252, on the same page, he says:

“In a just cause there is ordinarily no motive for collusion. But sometimes parties think they may gain something by it; or, what is more frequent, there is a collateral motive for suppressing the truth and substituting a false case in its stead. And however just a cause may be, if parties collude- in its management, so that in real fact both are plaintiffs, while by the record the one appears as plaintiff and the other as defendant, it cannot go forward. It is so even where material facts are mutually suppressed while their production would not have changed the result. All conduct of this sort, disturbing to the course of justice, falls within the general idea of fraud on the court, and of contempt of court. Such is the doctrine of principle everywhere. In England, perhaps this conclusion is in dissolution cases aided by the terms of the Divorce act, which are that the petition shall be dismissed when ‘presented or prosecuted in collusion with either of the respondents.’ ”

(Oases in support of the text are cited in the notes.)

The whole of this ninth chapter deals with this subject, and in paragraph 254 instances in point are given, in one of which Barnes v. Barnes, L. R. 1 P. & D. 505, the court is quoted as saying that the arrangement between the parties amounted to this, in substance: “The petitioner said to the respondent, ‘If you do not oppose, I shall get a divorce cheaper than if you do. Therefore, keep quiet, and T will give you some money when the decree is obtained, and I will do no harm to the co-respondent.’ If this is not collusion, I do not know what it is. It is said that she had no defence to offer, and it certainly seems that she had not, as far as her own adultery is concerned. But if she had brought to the knowledge of the court the facts which have now been proved as to the petitioner’s conduct in exposing her to temptation, it would have been a grave question whether the court would have granted a divorce.” The decree nisi, which had been rendered .in favor of the petitioner, ’was rescinded, and the petition dismissed.

In section 258 it is stated:

“If the suit is carried on by a plaintiff, not from his own desire for a divorce, but for the benefit and at the request of the defendant, any one of several reasons will prompt its dismissal. And as a fraud on and contempt of the court it is classed as collusion.”

Chapter 21 (at p. 284) is devoted -to the matter of the consenting of the parties, their bargainings, and the law respecting the same.

In section 696 it is stated: “Any agreement for. divorce or any collateral bargaining promotive of it, is unlawful and void.” 'And section 698 cites an opinion from 118 Ind. 533, 552, as follows: “It may be that if an action for divorce is pending, or if, in anticipation of such an action, the parties meet and agree, upon the amount of alimony to be allowed to the wife in case a divorce is granted, and the arrangement is just and equitable, and confining strictly to the matter of alimony, it will be sustained. But if the agreement is broader in its terms and its tendency is to interest the husband in procuring a divorce, or in foregoing resistance to an effort by his wife to that end, then it is contrary to public policy and void.” And in the same section other eases are cited which are said to hold that where the bargaining is to suppress a part of the evidence and take the judgment to which the other party entitled them, it is void. And so, a wife’s undertaking to accept $500 in full for all her claims as wife or widow in her husband’s property, coupled with her promise not to resist his divorce suit, was held to be a mere nugatory attempt to defraud the court in which he afterwards should bring his suit.

And in section 699 there is the following:

“In Connecticut after a husband had committed adultery and contracted venereal disease, he and the wife covenanted through a trustee that they would dissolve, as far as they could, the obligations of the marriage; that he would provide for her a separate maintenance, and that she should be no further chargeable to him, and that, seeing he had offended, he would furnish money and testimony to procure a divorce, she instituting the necessary proceedings, to be under his direction, and a majority of the Supreme Court of Errors held this agreement to be fraudulent and void as tending to mislead the court and interfere with the administration of justice. Ajl were of opinion that had it been to procure false testimony, or impose upon the court, it would have been void. But the dissenting judges contended that no fraud appeared in the facts; that it being the duty of the husband to furnish his wife, who had no money, with the means to procure a divorce, and after-wards to pay alimony, there was no fraud in his promising what he was under a legal duty to perform; and that the object of placing the control of the divorce suit in his hands having been merely to prevent the fact of his having had venereal disease becoming public, there was no imposition upon the tribunal in the omission of an incident which could not influence the result, the other proofs being ample. It was not denied that a suit for divorce gotten up solely by the defendant, under his own control and for his own benefit, would, on this fact appearing, be dismissed.”

(Another case is also cited, from Wisconsin, in the note.)

In paragraph 700 it is stated that no harm will come to the plaintiff or the public simply from the defendant’s not choosing to make and not making a defence. “But a bargaining that there shall be none is not permissible, and no promise founded upon such an undertaking can be enforced.”

In section 703 it is pointed out that it is not against public policy for the parties to a divorce suit to enter into an agreement as to what alimony shall be allowed and how their property should be divided, and the like, on the rendition of a decree,

“but if the contract is of a sort to stimulate a divorce, to discourage any defence, or in any way to impose upon the court, it will be void; for example, it will be void if so framed as to have effect only on condition that a divorce is granted without alimony.”

The American and English Encyclopcedia of Law, second edition, volume 9, page 833, defines collusion as follows: “A conspiracy of the husband and wife to obtain a divorce by suppression of the facts or by false or manufactured testimony,” a very different definition, it will be seen, from that of Bishop.

On page 833 of the same authoritjr, it is said:

“Where collusion is disclosed the court will not proceed to examine the evidence to see whether there was in fact a meritorious cause for divorce, for it would be unsafe to act upon further evidence. The case will not be dismissed, however, where one person discloses all the facts to the court and contests the ease in good faith. It is, therefore, immaterial, that the facts suppressed were insufficient to have changed the result.”

At p. 881/.:

“Where collusion appears or is disclosed in the evidence, the court will refuse all relief and will not enforce any contract of the husband and wife for the purpose of facilitating a divorce. Oollusion will be presumed where it is disclosed that * * * the parties * * * have agreed to allow the case to go by default without an appearance or answer by the defendant, or agreed that the innocent party would procure a divorce for the guilty party, the latter to pay the former a sum of money when the decree is obtained.” * * *

I do not think that I have made an absolutely exhaustive search of the authorities outside of New Jersey, but I have made some, and have found the following eases dealing with the general subject:

Hum v. Twombly (Mass., 1902), 181 Mass. 170; 63 N. E. Rep. 336: “If a wife in good faith undertakes to procure a divorce to which she legally is entitled upon the ground of adultery already committed by her husband, and to prevent unnecessary publicity or scandal her husband agrees with her as to the amount of alimony and the expense to be incurred for witnesses, this does not make a divorce so obtained collusive or fraudulent.”

Gentry v. Gentry (Mo., 1896), 67 Mo. App. 550: “Where husband and wife by an agreement stipulate that they mutually agree to make application for a legal separation, &e., and one of them thereupon sues for a divorce, the suit cannot be maintained.”

Branson v. Branson (Neb., 1900), 76 Neb. 780; 107 N. W. Rep. 1011: “An agreement between the parties to a divorce suit for a divorce for the collusive rendition of a decree therefor will defeat the action, and it is immaterial that one of the parties may have supposed the agreement to be free from legal or moral wrong.”

The term “collusion” in New York has been defined as follows :

“An agreement between a husband and wife to procure a judgment dissolving the marriage .contract, which judgment, if the facts were known, the court would not grant.”

Doeme v. Doeme (New York, 1904), 89 N. Y. Supp. 215; 96 Ap. Div. 284. The application of the foregoing definition to proven facts will be found in this case, and in Cowan v. Cowan, 53 N. Y. Supp. 93, and Dodge v. Dodge, 90 N. Y. Supp. 438; 98 Ap. Div. 85.

Latshaw v. Latshaw, 18 Pa. Sup. Ct. Rep. 465: “Where it appears that the application for divorce is simply that the parties may be freed and separated from each other, or that the libel is not founded on motives of sincerity and truth, but demanded for light reason, or in a matter smacking of collusion, the decree must be invariably refused.” It appearing in that case that the wife met her husband and told him that she was going to get a divorce for non-support and abuse, and that he agreed to it and to make no defence.

Erwin v. Erwin (Texas, 1897), 40 S. W. Rep. 53: “The fact that the parties to a divorce suit, a few days before the trial, agree as to a division of the property in case a divorce is granted, and that defendant desires to withdraw his answer and allow plaintiff to have a decree, was not alone sufficient to show collusion.”

The following are the cases in New Jersey dealing with collusion :

Costill v. Costill (Chancellor McGill, 1890), 47 N. J. Eq. (2 Dick.) 346. In this case the fact that the defendant husband voluntarily appeared so that he might be served, and that the wife, the petitioner, obtained $500 from him after the suit had begun, led the chancellor to believe that a collusive agreement had been entered into between the parties, and he investigated to ascertain the facts.

Drayton v. Drayton (Chancellor McGill, 1896), 54 N. J. Eq. (9 Dick.) 298. In that case the suspicions of the chancellor were aroused as to whether the suit was not collusive because the defendant had originally made accusations against his wife which he did not in any way seek to prove at the trial, allowing the case to go upon the testimony produced by the petitioner; and furthermore, the petitioner failed to demand the custody of his children. He took proofs and satisfied himself, he says, that there was no collusive agreement nor understanding between them.

Pohlman v. Pohlman (Vice-Chancellor Pitney, 1900), 60 N. J. Eq. (15 Dick.) 28. In that case the suspicions of the vice-chancellor were aroused because there was a voluntary appearance of the defendant. In his own language he states it as follows : “The next question is as to whether the fact that the wife is so far desirous of having a divorce, and one Ihat shall be valid, as to* induce her to voluntarily appear in a court where she is not obliged to appear, amounts to collusion?” He expressly finds that there were no facts suppressed, and that the original desertion was not committed nor persisted in by any connivance. He cites three or four definitions of collusion, and from his treatment of them it is obvious that from them he extracts the principle that the essence of collusion is an agreement to suppress facts or manufacture a case. It is nowhere suggested in his opinion that there was any agreement between the parties that the case should be brought, or that the defendant should submit herself, or that the defendant in any way made any agreement with the petitioner; his suspicions having been entirely aroused by her voluntary appearance, and the decision going, in my view, no further than to hold that that fact alone is not sufficient either to find collusion or dismiss the suit upon any ground of public policy.

Griffiths v. Griffiths (Vice-Chancellor Bergen, 1905), 69 N.J. Eq. (3 Robb.) 689. In this case we have an ex parte divorce proceeding on the ground of desertion. After a review of the facts which were produced by the petitioner to prove the desertion, and expressing his inclination toward an opinion that they were not sufficient, the vice-chancellor says that he does not put the decision upon that ground, then proceeds as follows: “The law of this state deprives this court of jurisdiction unless the petitioner shall make oath, to be annexed to the petition, that her complaint is not made by any collusion between her and the defendant for the purpose of dissolving their marriage, and it necessarily follows, that if at any time during the procedure it shall appear that the jurisdictional condition is not present, the petition should be dismissed.” In Pohlman v. Pohlman, 60 N. J. Eq. (15 Dick.) 28, the vice-chancellor held “that the desire of a defendant to be divorced, and her voluntary appearance in a court where she is not obliged to appear in order that the decree may be valid in a foreign jurisdiction, does not amount to collusion, but the facts offered for consideration in the case just cited differ in a very marked degree from those appearing in this case. Collusion in cases of this class is not only a corrupt agreement between the parties whereby one shall commit the matrimonial offence, or under the terms of which evidence of an offence committed is fabricated, but also includes any agreement whereby evidence of a valid defence is suppressed, and, in my judgment, such an agreement, if not expressed, may be implied from the acts of the parties.” He then goes on to show that public policy is always involved in divorce suits, and he finds that the defendant appealed to the petitioner to bring a suit for divorce and agreed that if she would do so he would give her a lump sum of money provided she obtained a divorce. And after discussing this, he says: “If arrangements between parties providing for the institution of divorce suits, in consideration of a large sum of money, are to receive the sanction of this court, every legal restriction against the voluntary dissolution of the marriage tie can readily be avoided by designing and unprincipled parties.” He therefore finds that there was collusion, and dismissed the suit.

In some of the authorities above cited it will be found that the court, upon being satisfied that the defendant and complainant had agreed that the suit should be brought, had dismissed the suit without prejudice to the right to bring another one not the result of such collusion.

My own view of the situation, briefly stated, is this: The policy of our law favors marriage, and disfavors divorce. Parties may not be permitted to make agreements with respect to divorce suits which would be perfectly proper to be made in other litigations. In divorce suits public policy requires that certain agreements shall not be made between the parties and when such interdicted agreements are made they are termed “collusive.”

What is termed “collusion” in divorce suits is a definite kind of agreement of-parties concerning the divorce. If collusion is to be limited (as some of the definitions would limit it) to “a corrupt bargain to impose a case upon the court,” that is, either by the suppression of evidence or by the manufacture thereof, then, each case where there was an agreement between the parties would have to be investigated to see whether such an agreement came within the interdiction of the definition of collusion. But if collusion is given an ampler definition, so as to include any agreement between the parties as a result of which no defence shall be made, then the case will not be investigated after the ascertainment that there is such an agreement, because that agreement itself would be within the definition of collusion and would defeat the suit.

I cannot escape the conviction that our statute which requires an affidavit by the petitioner that “the said petition is not' made by reason of any collusion” * * * indicates that with us “collusion” must be given the broader and ampler definition. It seems to me to be perfectly clear that if a man and wife agree that one of them shall bring a suit for divorce against the other, and that no defence shall be made, such an agreement should be included in the definition.of collusion. And it also seems clear to me that when they have thus agreed the party making the petition certainly makes it by collusion.

This definition, of course, would not include cases in which the defendant was willing the suit should be brought or was even anxious or desirous that it should be brought, but would include cases where the defendant and the petitioner agreed that it should be brought and that no defence shall be made, a fortiori, where he not only agrees that it should be brought and be undefended, but advances money to induce its bringing.

My reason for thinking that the definition should be the broader one is that it would then be clearly and consistently in keeping with the public policy which we maintain in this respect. Because, if we limit the term “collusion” to the narrow definition (which only includes the suppression of evidence or the manufacture thereof), and permit agreements that suits shall be brought in which no defence shall be made, we are creating by such permission a situation in which the chances of our ever finding out the truth concerning the matter are almost zero.

If parties agree that one of them shall bring a suit and the other will not defend, it is impossible to escape the conviction that the court will have practically no opportunity to ascertain whether evidence is suppressed, or manufactured evidence is offered. I do not wish to be understood as including within the definition of collusion agreements by which the husband contracts to pay a certain amount of alimony to his wife without the intervention of the court. I do think, however, that within the definition of collusion should be those cases in which the husband agrees with the wife that he will furnish a sum of money with which she is to procure a divorce against him.

I think that what has been done in some courts should be done in such cases; that is, where the court is convinced that there is not manufactured testimony or suppressed evidence, but f that the suit is collusive because of the agreement, the suit should be dismissed without prejudice to the right to bring another suit which shall not be collusive.

I am clearly of opinion that if it be held that jfo. agreement between husband and wife that suit shall be brought and no defence entered is within the definition of collusion, the court should infer such an agreement from the fact that the husband has, before the suit was begun, advanced money to the wife, or to a lawyer for the wife, for the purpose of bringing the suit.

• As is pointed out by Chancellor McGill, Vice-Chancellor Bergen and other judges, it is a shallow pretence that there is any intention to defend if the defendant furnishes money for the prosecution of the suit. And it certainly is not a violent inference for the court to find an agreement in consonance with the defendant’s act in furnishing the money to enable a suit to be brought against him.

The result is that the petition in this case will he dismissed without prejudice to the right of the petitioner to bring any suit free from collusion.