text:
    WILLIAM HEBREW, PLAINTIFF, v. JOHN M. KELLY CONTRACTING COMPANY, DEFENDANT.
    Submitted May 26, 1924
    Decided August 15, 1924.
    Negligence — Open Trench in Highway — Proper Protection— Plaintiff Testified That There Was Sufficient Light to See Opening — Contributory Negligence.
    On rule to show cause.
    Before Justices Tbenchard, Mintuen and Lloyd.
    Eor the rule, Frank A. Mathews, Jr.

      Contra, George Gildea, of Kalzenbach & Hunt.

   Per Curiam.

This is the plaintiff’s rule to show cause why a new trial should not be granted. The snit was to recover damages for injuries sustained by the plaintiff through a fall into a trench on the southerly side of Broad street, in Palmyra, on the evening of May Gth, 1922. The plaintiff’s evidence disclosed that the defendant had opened the trench and had piled the dirt along the side of it except for a space of about ten feet, which had been left open, level with the surface of: the street. The trench itself extended eastwardly from Cinnaminson avenue, and was protected by a light at the Cinnaminson avenue end and another light sixty-five or seventy feet eastward of Cinnaminson avenue. There was no light at the point where the dirt had been leveled even with the street. It further appeared that this opening was a space used by the public to cross to the railroad station and also to a moving picture house.

The defendant offered no evidence, but tile jury rendered a verdict in its favor. We think it quite clear that the defendant’s negligence was amply and conclusively proven, and if this were all of the case the verdict of the jury could not well be sustained. It appeared, however, that the plaintiff was familiar with the location of the trench and with the embankment of dirt. He testified that it was light enough f.or him to see the ¡files of dirt. The plaintiff’s wife was with him at the time he fell into the trench. She preceded him and passed safely over the trench. When the plaintiff attempted to pass, he fell into the trench and was injured.

The contributory negligence of the plaintiff having been pleaded, we think it was well within the right of the jury to find against him on this phase of the case, and the rule for a now trial will therefore be discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MICHAEL T. KELLY, PLAINTIFF, v. MORRIS COUNTY TRACTION COMPANY ET AL., DEFENDANTS. ARTHUR J. SELDNEY, PLAINTIFF, v. MORRIS COUNTY TRACTION COMPANY ET AL., DEFENDANTS.
    Submitted May 26, 1924
    Decided August 15, 1924.
    Libel — Malicious Prosecution — Conspiracy—Plaintiffs, Jitneurs, Alleging Injury Through Acts of Traction Company, Mayor and Others — Malice Not Shown — Action Cannot Lie.
    Before Justices Tren chard, Minturn and Lloyd.
    Pot the rule, Bolitho & O’Connor.

      Contra, Seth H. Ely and William IT. Spear.

   Per Curiam.

The plaintiffs in these cases were jitneurs, operating jitney buses between Morristown and Wharton, and through the town of Dover, in Morris county. The Morris County Traction Company operated an electric street car line between and in these points. These suits were instituted by the plaintiffs against the traction company, one Schultz, the mayor and board of aldermen of Dover, William Gardner, William Lindberg and John Kart. The complaints are each in three counts, substantially the same, and charge that the defendants conspired together and carried on a campaign of libel, malicious prosecution and conspiracy to destroy the plaintiffs’ jitney business, and alleged sundry acts in support thereof; that the traction company and Schultz maliciously instituted several suits against the plaintiffs; that the traction company and Schultz sent a certain libelous communication concerning the plaintiff to the mayor and board of aldermen of Morristown, and libeled plaintiffs in affidavits filed in the civil actions.

The eases were tried in the Morris County Circuit, and resulted in a nonsuit. They are before us now on rules to show cause why a new trial should not be granted. We have examined the record of the case with care and find no reason to disagree with the conclusion reached by the learned trial judge. The Morris County Traction Company, operating a street railway line, owed to its stockholders the duty of afford-, ing them all legal protection against unjust or unlawful competition, it was legitimate for it to apply to tile courts for any restraint upon the plaintiffs that seemed to it as affording protection in this regard. It is well settled in this state that civil actions, unless founded in malice, afford no ground for suit for damages (McFadden v. Lane, 71 N. J. L. 630), and the evidence disclosed nothing from which malice could he inferred. We think it was equally within its rights in its communications to the public authorities urging steps that would afford it protection in the exercise of its franchise. There is nothing to show that the municipal authorities, in adopting the ordinances in question, or in the attempts to enforce them, were actuated by other than an honest purpose to perform a public duty. The public authorities are the custodians of the public highways iu many respects, and as such stand for the protection of the rights of the public therein. A street car line is but a means whereby the community can be transported from one point to another with eonvenien.ee and dispatch. The public is interested to see that this transportation is efficient, responsible and supplied at the lowest cost. A diversion of travel to other means naturally contracted the public patronage of the traction company and made probable added costs in the way of higher fares to those who patronized its lines. The public authorities were also interested in the protection of the highways themselves against unreasonable use. Whether the ordinances were valid or invalid is of no consequence unless it appear that the authorities were actuated by improper motives in their adoption and attempted enforcement. There is nothing in the case from which improper motives could be inferred. On the contrary, from all that appears, their actions would seem to have been based upon an honest effort to preserve the public rights.

There being nothing upon which the right to damages could be predicated on any of the counts in either of the cases, the rule for a new trial in each case will be discharged.


author: Flannagan, J.

text:
    Essex County Court of Common Pleas.
    State of New Jersey, plaintiff, v, James Twyman, defendant.
    [Decided April 24th, 1924.]
    Crimes — Common Thief — Conviction in City Criminal Court— Appeal to Common Pleas — Evidence of Frequent Convictions All More than Eighteen Months Prior to this Arrest.— Conviction Set Aside.
    Oil review of conviction as a common thief.

      Mr. John P. Manning, for the plaintiff.

      Mr. George A. Douglass, for the defendant.
   Flannagan, J.

The defendant was convicted in the first criminal court of the city of Newark of being a common thief, under the previsions of 2 Comp. Stat. p. 1927 § 1. The conviction is brought before this court in order that the legality of the proceeding and conviction may be reviewed and determined.

The only evidence, according to the record, upon which the defendant was adjudged to he a common thief, was that he had been convicted of larceny in Philadelphia, Pennsylvania, on xVpril 5th, 1915, and again on April 24th, 1922, being sentenced to one year imprisonment on the former charge and to probation for one year on the latter, and on August 18th, 1922, having been arrested on suspicion of picking pockets, he was sentenced to one year imprisonment for violation of such probation or parole. The evidence also showed that he had been held April 4th, 1919, as an escaped prisoner from Ohio State Penitentiary for robbeiw, and liad been arrested as suspected of picking pockets on April 21st, 1921, and discharged.

Common thieves are enumerated in the statute with common drunkards, common night-walkers, common prostitutes, &e. (2 Comp. Stat. p. 1927), and are classed by some writers in the category of nuisances. The gravamen of the offense in this class of cases is manifestly the repeated or habitual violation of the law. 3 Wigm. Ev. (2d ed.) 374 § 1620 (3); 1 Ibid. 443 § 203; 2 Whart. Cr. (11th ed.) 1879, 1880 § 1715; World v. State, 50 Md. 49; State v. Nutt, 28 Vt. 598 (at p. 602); Attorney-General v. Savage, 89 Ala. 9, 10.

It is equally clear that the status of the defendant must be that of a common thief at the time specified in the charge.

ddie charge against the defendant was that he was on the 20th day of Eebruaiw, 1924-, at the city of Newark, a common thief. There is no evidence in the record suggesting any act of larceny on the part of the defendant since August 2d, 1922, a period of over eighteen months before the date specified in the charge.

The defendant is presumed to be innocent, and must be proved guilty beyond a reasonable doubt.

Evidence of larcenies eighteen months previously are too remote to show that the defendant was an habitual violator at the time laid in the charge, or to support a finding that his status at that time was that of a common thief.

Eor this reason the conviction will be set aside and an order made discharging the defendant from custody.

Note. — The briefs of counsel indicate that the police officer making the arrest testified that the defendant was at the time he was arrested acting in a suspicious manner, but nothing to that effect appears in the transcript of testimony certified by the'judge. If there was, as indicated by the briefs, testimony merely of the conclusion of the officer unsupported by any facts, it is of no evidential value.


author: Foster, V. C.

text:
    Ferdinand Stines, complainant, v. James D. Carton, executor, &c., of Charles O’Malley, deceased, and William B. White, defendants.
    [Submitted July 30th, 1924.
    Decided August 8th, 1924.]
    Trusts — Implied—Transaction Alleged to Have Been While Grantor was Intoxicated — Will Executed Under Similar Conditions Making Other Disposition of Property — Bill of Inter-pleader — No Trust Found to Exist.
    On bill, &e.

      Mr. Arthur M. BirdsaM, for the complainant.

      Messrs. 'Durand, Ivins & Carton, for the defendant James D. Carton, executor, &c.

      Mr. George L. Burton, for the defendant William B. White.
   Foster, V. C.

This is an interpleader suit, and the controversy arises over a fund of $8,000, which the decedent, Charles O’Malley, entrusted to the care of complainant.

The money had been paid into court, less the amount of Mr. O’Malley’s funeral expenses, which was paid by complainant therefrom, with the consent of both defendants.

The facts established at the hearing are that Mr. O’Malley,who conducted a hotel near Belmar,- in Monmouth county, some time in 1920 or 1921, gave complainant $1,000 in cash, to keep for him, and some time in 1922 decedent gave to complainant the further sum of $7,000 in cash, to keep for him.

In the spring and summer of 1922, O’Malley was drinking very heavity, and, according to complainant, was almost continuously under the influence of intoxicating liquors, and was quite ill at times, and after June 15th he ivas seriously ill.

On June 30th, 1922, he was intoxicated, and had received a draft of his will, and before executing it he told complainant and the defendant White that the priest and others could not wait until he was dead to get his iaoney. He executed the will that night, however, Mr. White and his wife acting as the witnesses, at the request of O’Malley and Father McConnell. This will was duly admitted to probate, and by its terms, after the payment of his debts and funeral expenses, decedent gave to Rev. William J. McConnell, rector of the Church of St. Rose, Belmar, New Jersey, $3,000, for certain specified purposes; to Father McConnell personally he gave. $5,000, and the residue of the estate was given to the Church of St. Rose for the use of the parish school. Mr. Carton was appointed the executor, and has duly qualified.

On July 1st, the day following the making of the will, .O’Malley, while still intoxicated, had the defendant White, in the presence of Stines, write on a blank bank check the following: “July 1st, 1922. I will turn over to W. B. White, $8,000.00/100 eight thousand after Challes B. O’Malley’s death dollars,” and O’Malley had complainant sign this, and it was then delivered to White.

After the execution of this paper, complainant, as he states, for his own protection, had prepared and had O’Malley sign a paper reading as follows:

“Belmar, N. X, ,Tuly 1, 1922.
“I Charles O’Malley, do hereby request Ferdinand Stines to pay to W. B. 'White upon the event of my death, the sum of eight thousand dollars [$8.000] belonging to me and now in the possession of stines.
“In the presence of [Signed] Ctiakles O’Malley.”

After the execution of these papers on J uly 1st, O’Malley returned with While to the latter’s home in South River, where he had spent the previous night after executing his will, and on July 3d, while White and O’Malley were driving from South River to Belmar, they met Leo J. Coakley, a lawyer of this state, to whom White introduced O’Malley, and the latter told Coaldey of-the paper Stines had signed on July 1st, and he requested Coakley to prepare a paper for O’Malley to sign, and which was to he held by White; this paper was then prepared bv Coakley, and later on that day it was signed by O’Malley in the presence of two witnesses. This paper reads as follows:

“July 3d, 1922.
“Whereas I am indebted to William B. White of South River for many favors done me and I having- coming to me from the Belmar Building- and Loan the sum of eight thousand dollars, now therefore for the consideration of the sum of one dollar and other good and valuable considerations I hereby assign and transfer unto William B. White the said sum- of eight thousand dollars, transfer to take place upon my death.
“The said sum is now in name of Fred Stines.
“Charles O’Malley.
“Witnessed by
“Edward Cost,
“Felix Arnoüld.”

After this paper was executed, O’Malley gave it to White. O’Malley was so ¡11 at this time that he was taken to the hospital almost immediately after signing this paper, and he remained in the hospital until July 10th, when he returned to his hotel at Belmar.

After he returned to Belmar, O’Malley had many conversations with complainant about his money. He could not recall anything about the two papers that had been executed oil July 1st, and he did not tell Stines of the paper lie had signed on July 3d. He frequently demanded his money from Stines, and Stines refused to give it to him until he returned to Stines the paper Stines had signed on July 1st, and which O’Malley had given to White. O’Malley repeatedly told Stines h.e would get this paper back from White, but he never did so. Stines had loaned the $8,000 to the Belmar Building and Loan Association, and he gave O’Malley the interest he received from this-loan.

O’Malley, during the summer of 1922, frequently complained of the lack of íhoney and of the small amount he had on deposit to his credit in bank, and he could not recall having withdrawn and used-but a few hundred dollars for expenses while at the hospital. Stines, on investigating the matter, found and told O’Malley that his bank account was overdrawn, and, on an examination of the canceled cheeks by O’Malley and Stines, it was found that the overdraft and the shortage in O’Malley’s bank account was due to two checks O’Malley had drawn and apparently forgotten, one to White for $1,000 and one to Mrs, White fox $2,000.

Erom a letter written by Mrs. White to O’Malley, in October, 1922, and from the testimony of Stines, it would appear that White and O’Malley were both engaged in the illegal sale of liquor, and that White, at least, was engaged in the business as a “bootlegger.” It was also shown that O’Malley and White had been acquaintances or friends for over twenty years, and that they frequently visited each others’ home.

Mr. O’Malley died on November 2d, 1922, without relatives, so far is known.

Upon his death, demand was made upon complainant by •his executor and also by Mr. White for the fund in question, and which practically constitutes his entire estate, and these conflicting demands resulted in this action.

At some of the hearings there was some uncertainty as to the exact nature of the claim made by White to this fund, and counsel for Mr. White finalty announced that O’Malley, by the papers mentioned, had created an irrevocable trust of this fund for the benefit of White, and I now find on his brief that counsel for Mr. White states his claim in the following manner:

“Erom the above facts the defendant White contends—

“(1) That none of the papers executed constituted a will or attempt at testamentary disposition.

“(2) That the transaction did not constitute a gift inter vivos or a gift causa mortis.

“(3) White does contend, however, that on July 1st, 1922, O’Malley imposed a trust upon the said fund of $8,000 for the benefit of White; that this was a perfectly created and completed trust by parol, and evidenced by these paper writings.”

From the record, and especially from the three papers on which White relies, I am unable to find any evidence of the trust which White claims. The first paper which O’Malley had Stines sign is, by its express terms, nothing more tiran an acknowledgment by Stines that he had $8,000 of O’Malley’s money which he promised “to turn over to White after O’Malley’s death.” The second paper which Stines had O'Malley sign for his protection, and not for White’s benefit, requests Stines to pay White $8,000, “upon the event of my [O’Malley’s] death,” and the third paper drawn by the lawyer, Mr. Coakley, is, by its expressed terms, an assignment from O’Malley to White for a valuable consideration of the money in question, then loaned in the name of Stines to the Belmar Building and Loan Association, the transfer of the fund to take place upon O’Malley’s death.

From my consideration of the entire record I have reached the conclusion that O’Malley did not create a trust in the fund in question for the benefit of White. What ho did, and what I think the proofs clearly show he attempted ineffectively to do, while under the influence of liquor, and without competent advice, and probably unduly influenced against those who persuaded him to make his will, was to attempt, by these papers, to make a testamentar}1- disposition of this fund without, the formalities attendant upon the execution of a will.

He was apparently angry at those who urged him to make a will, and he was neither physically nor mentally sober or strong enough to resist these importunities, but as a result of them he harbored a resentment which lie attempted to gratify by the papers in question.

On his return from the hospital his feelings underwent another change; he turned against White and his wife; he told Stines he owed them nothing, claimed they had been well paid fqr all they liad clone for him, and threatened and promised to make White return to him the papers on which White now rests his claim.

While it is of course true that no special language need be employed to create a trust such as White now claims, it is equally true that an intention to establish such a trust, and an effort to give effect to such intention, must be shown by a clear preponderance of the proof in order to establish such a trust. As no such proof is present here, a decree will be advised that the fund be paid to the executor of O’Malley’s estate.


author: Walker, Chancellor

text:
    Frank Lulevitch and Anna J. Lulevitch, complainants, v. Horace Roberts, defendant.
    [Decided August 15th, 1924.]
    Water Courses — 'Drainage—Collection of Surface Water — Discharge of Unusual Quantities Upon Lands of Another Unlawful.
    On bill, &c. On application for preliminary injunction.

      Mr. Carl Kissehnan and Mr. Alberl 8. Woodruff, for the complainants..

      Mr. George B. Evans, for the defendant.
   Walker, Chancellor

The complainants, owners of certain farmland, sold part thereof to the defendant, who constructed a fill along his ground, bordering that which is still the complainants. This fill is higher than the natural level of complainant’s land, and surface water, instead of flowing across the land of the defendant onto that remaining to the complainants, as it anciently and naturally used to, it is now obstructed by the fill. In order to drain such accumulation of water, defendant has placed two drain pipes underneath the fill on his tract to the land of the complainants, which is lower, thereby draining his land in unusual volume upon restricted area on complainant’s land, to their manifest injury.

No person is authorized to collect surface water, and through pipes cast it in unusual quantity upon the lands of another. To prevent this damage an injunction will issue.

Preliminary injunction accordingly.


text:
    ANDREW F. McBRIDE, COMMISSIONER OF LABOR OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES CLARK, TRADING AS OFFICE AND TECHNICAL EXCHANGE, DEFENDANT-APPELLANT. CHARLES CLARK, PROSECUTOR, v. ANDREW F. McBRIDE, COMMISSIONER OF LABOR OF THE STATE OF NEW JERSEY, DEFENDANT.
    Submitted May 26, 1924
    Decided August 18, 1924.
    Employment Agencies — Licenses Therefor — Constitutionality of Statute Requiring Licenses Sustained — Police Power Extends to Public Morals — Right of Commissioner of Labor to Withhold Licenses for Cause Sustained.
    Before Justices Trenohard, Minturn and .Lloyd.
    For the appellant, Grover C. Richman and Edward L. Kaizenbach.

    For the respondent, Lum, Tamblyn & Oolyer.

   Per Curiam.

These causes present substantially the same questions to this court and will be dealt with together. The first is an appeal from a judgment of the First District Court of the city of Newark, in which the commissioner of labor recovered a penalty in the sum of $250 against Clark for conducting an employment agency without a license therefor in violation of section 3 of chapter 221 of the laws of 1918, entitled “An act to regulate the keeping of employment agencies.” This section, in its pertinent provision, is as follows: “(a) No person shall open, keep or carry on any employment agency as above defined unless such person shall procure a license therefor from the commissioner of labor.” For violation of this provision a penalty of not less than $50 and not more than $250 is imposed by the act.

The case of Clark v. McBride is on certiorari directed to the commissioner of labor, bringing before the court the refusal of the commissioner to grant a license to Clark to carry on an employment agency.

The cases are argued here upon constitutional grounds. The constitutional provisions claimed to he violated by the judgment of the District Court and by the action of the commissioner in refusing the license to Clark are the fifth amendment of the federal constitution, which provides: “Nor shall any person be deprived of life, liberty or property without due process of law;” the fourteenth amendment of the federal constitution, which provides: “Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws;” and section 1, article 1 of the state constitution, which provides: “All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.”

The right of a state, under the constitution of the United States, to regulate the business of employment agencies, has been clearly established by the Supreme Court of the United States in the case of Brazee v. Michigan, 241 U. S. 340; the court, in that case, using this language: “Considering our former opinions, it seems clear that without violating the federal constitution a state, exercising its police powers, may require licenses for employment agencies and prescribe reasonable regulation in respect to them, to be enforced according to the legal discretion of a commissioner.” Many authorities are cited in the opinion filed in that case, supporting the conclusion there reached.

It is common knowledge that the business of an employment agency is one dealing with a great body of our population, both native and foreign born, which is susceptible to imposition, deception and immoral influences. Embracing, as it does, male and female, the ignorant, the poor, the young as well as the old, the weak and the strong, it would seem to be appropriate that the state should regard them as peculiarly situated for the exercise of its. protecting ami. In consequence of these conditions and the dangers to which this great body of people is exposed, many states have adopted similar legislation, among them the state of Michigan, upon the legislation of which the cited 'case arose.

Eegarding the right of the state to regulate the employment agency, in so far as the federal constitution is concerned, is clear, we think, upon reasons analogous to those exjoressed by the Supreme Court of the United States as well as those set forth in the foregoing recital, the constitution of our own state is not offended in the enactment of the law in question. The right of a state to regulate under its police powers a business which involves dangers to- public morals and public health cannot at this date be called in question. It is not an infringement of any right that the legislature has prescribed that he who engages in the business of an employment agency should first submit himself to the permission and license of the state, or that he shall- be subject to reasonable regulation in the conduct of such business. The conclusion we reach is that the act in question is within the police power of the state, in so far as it requires the obtaining of a license by one seeking to engage in the business of an employment agency. There was therefore no error in the judgment rendered in the- imposition of the fine of $250 on the appellant for conducting his business without such license.

In the case arising upon the refusal of the commissioner-of labor to issue a license to the prosecutor we reach a similar conclusion. The power to grant a license under the statute has been vested in the commissioner within certain limits. It is obvious that unless a hard and fast line of conditions is indicated in the legislation itself, the power of deciding upon the fitness of the applicant must be vested in some other authority if the purpose of the act is to be made effective. In the case of Brazee v. Michigan, supra, there were many regulations vested in the discretion of the commissioner of labor, and this authority was expressly sanctioned by the Supreme Court. Under section 10 of our own statute the commissioner of labor may refuse to issue any license “for any good cause shown” within the meaning and purpose of the act. Among the conditions of obtaining such license are that the “applicant shall be required to furnish satisfactory proof of good moral character in the form of affidavits,” and imposes upon the commissioner the duty of investigating the character of the applicant. Deeming the business as one justifying intervention of the legislature for the safety of the public morals and public health under its police powers, and that the power to determine the fitness and qualifications of those seeking to engage in the business was properly given to the commissioner, the question arises, was the power legally exercised in the individual case, the commissioner having refused the prosecutor’s application for a license upon the grounds (1) that the applicant had already violated the statute by carrying on the business without a license, well knowing the legal requirements therefor, and (2) that the schedule of fees proposed by the relator were not approved by the commissioner.

Upon the first ground it is our opinion that the commissioner was justified in refusing the license. The prosecutor had previously carried on the business of an employment agency in the city of Newark; he knew the requirements of the statute respecting license and regulation; he proceeded to determine the validity of the act for himself instead of testing the same by orderly and legal methods, and exhibiting himself as one prepared to set the law at defiance, he obstinately refused to apply for a license, and continued to carry on the business until brought before the court and fined. Upon such conduct we think the commissioner was justified in refusing the application for a license. Regarding the first reason for refusing the prosecutor’s application for license as good and sufficient we do not pass upon the added reason that the schedule of fees as proposed was disapproved.

The result we reach is that the judgment in the case of McBride v. Clark will be affirmed, with costs, and in the case of Clark v. McBride on certiorari, that the action of the commissioner in refusing the license will also be affirmed, with costs.


author: Lloyd, J.

text:
    PROTECTIVE FINANCE CORPORATION (A CORPORATION OF DELAWARE), PLAINTIFF-APPELLEE, v. SAMUEL GLASS, DEFENDANT-APPELLANT.
    Submitted May 26, 1924
    Decided August 18, 1924.
    Corporations — 'Foreign—'Certificate of Authority to do Business —Action Against Defendant Deferred Only Until Certificate Has Been Obtained.
    Before Justices Tebnchard, Mintürn and Lloyd.
    Por the appellant, Weinberger & Weinberger.

    For the respondent, William B. Yanecei-.

   The opinion of -the court was delivered by

Lloyd, J.

This is an appeal by the defendant, Samuel Glass, from a judgment of the Passaic District Court, in favor of the plaintiff, the Protective Finance Corporation. The action in the court below was to recover upon a contract made between the plaintiff and the defendant, whereby the defendant assumed responsibility for the return of premiums on certain policies of insurance effected through the plaintiff company.

The grounds of the appeal are that at the time of the making of the contract and the liability attaching thereunder, the plaintiff company was a Delaware corporation, not having filed with the secretary of state a statement, and received from him a certificate, as inquired by section 97 of the Corporation act. Comp. Stat., p. 1657. The evidence taken in the case disclosed that the plaintiff company prepared a statement to be filed, and placed it in the hands of the defendant for the purpose, but that for some reason it was not actually filed nor any. certificate received thereon from the secretary of state until November 25th, 1922. The suit was instituted in the District Court on the 10th of January, 1923. Section 98 of the Corporation law enacts as follows:

“Until si tell corporation so transacting business in this state shall have obtained said certificate oi the secretary ot state, it shall not maintain any action in this state, upon any contract made by it in this state."’

Section 100 provides for a penalty lor violation of the act in transacting business without having first obtained the authority therefor of $200 to he recovered at the suit of the attorn ey-gen eral.

The business conducted by the plaintiff was that of financing automobiles, mortgages and other property. There is, therefore, no doubt that what the plaintiff did was not an isolated transaction, but the general conduct of its business in this state, and that without the certificate of the secretary of state as above required. On this state of facts the defendant contended in the court below, and contends here, that the plaintiff! c-oulcl not maintain its action against him for the recovery of the insurance premiums, and upon them asks that the judgment against him be reversed.

Consideration of the legislation would seem to disclose a purpose on the part of the legislature to interdict the transaction of business in this state, unless upon the procuring of the necessary certificate from the secretary of state, and to impose a penalty for its \ iolation. .It is to be noted, however, that this penalty is the only penalty, and is to be recovered at the suit of the attorney-general. This is as far as the statute goes in penalizing the offender. The next apparent intention is to suspend the right of action upon such transactions until the certificate is secured. There are numerous statutes in the various states of the union of similar nature, a number of them existing before the enactment of the legislation in question. In some states the right of action is barred entirely ; in others, as in this state, the right of action is suspended, and the judicial interpretation placed upon the latter class has been to withhold the right to sue only and until the necessary certificate had been obtained, bolding that a different construction would open an avenue of easy escape to the dishonest debtor, and produce in many cases a harsh result especially where the default might be due to oversight and neglect, rather than intentional wrong. The cases bearing upon the subject will be found collated in- C. J. 14 A, 1302, 1303.

Counsel for the appellant has cited to us the cases of Faxon Co. v. Lovett Co., 60 N. J. L. 128; Delaware and Hudson Canal Co. v. Mahlenbrock, 63 Id. 281, and Wolf v. Lancaster, 70 Id. 201, as sustaining his contention. Careful examination of these cases leads us to a contrary conclusion. The tendency of them all has been to limit the statute to its immediate terms and not to extend its application beyond them. In the Faxon case, suit was brought by the Faxon Company upon a contract made outside the state, and the court held that the statute did not preclude a recovery. In the D. & H. Canal v. Mahlenbrock case the transaction involved was a single one and not a part of a course of business in the state, and the court held not prohibited under the statute. In Wolf v. Lancaster the right of recovery was denied solely on the ground that a like penalty would be imposed in Pennsylvania, the home of the plaintiff corporation, and that, therefore, under section 101, the same effect must be given here. It thus appears that our courts have held the statute within its strict limits, and in the interest of common honesty and comity towards, our sister states, it would seem to be a rational and just course to pursue. Thus regarding the statute, section 98 will not be extended beyond its plain terms and natural meaning. These are that until the offending corporation shall bring itself within the jurisdiction of our courts by filing the necessary statement, appointing an agent for the service of process and obtaining from the secretary of state a certificate authorizing it to do business, all right of action on its contracts shall be suspended. The use of the word “until,” given in the statute, can fairly be given no other meaning. By necessary implication it would seem to follow that when the corporation has thus complied with the law, and subjected itself to the process and jurisdiction of our courts, the inhibition against its own right of action should be terminated, and that it should then stand on an equality in our courts for the enforcement of its right upon contracts made before as well as upon those made after taking the steps required by the act.

The only other error complained of is that the defendant was acting for a disclosed principal, and that this fact was made known to the plaintiff during the course of negotiations with the defendant. The answer to this is that there is abundant evidence in the ease that the defendant was acting as a principal, and so dealt with the plaintiff respecting the insurance premiums.

The judgment will he affirmed.


text:
    CHARLES F. ROSS. PLAINTIFF-RESPONDENT, v. TIDEWATER OIL SALES CORPORATION. A BODY CORPORATE, DEFENDANT-APPELLANT.
    Submitted May 26, 1924
    Decided August 18, 1924.
    Negligence — Motor Vehicle Collision — Duty of Plaintiff in Avoiding Defendant’s Car Which Had Been Standing But Began to Move Just at time of Approach.
    Before Justices Trenchard, Minturn and Lloyd.
    Eor the appellant, Collins & Corbin.

    For the respondent, Addison P. RosenJsmns.

   Per Curiam.

This action grew out of an accident happening December 1st, 1923, on the Areola road, in Bergen county. The plaintiff was driving northwardly on this road, and reached a point in a curve when, at two hundred feet distant, he saw the defendant’s truck standing at right angles to the road, with its rear close to the westerly side of the highway. As he approached it the truck started up, going in a southeasterly direction, and covering a portion of the east side of the road. This occurred when the plaintiff was within thirty feet .of. the truck, and going at a rate of twenty-five miles per hour. The plaintiff was suddenly confronted with a situation demanding the exercise of judgment to extricate himself from a dangerous situation. Deeming it safer to pass behind the moving truck rather than in front of it, he took that course, and a collision took place, whereby his car was damaged. It was for this damage that the suit was brought. At the conclusion of plaintiff’s case, a motion for nonsuit was made and den led.

' The contention is made oh this appeal from the District Co art of the Second Judicial District of Bergen county that the motion for nonsuit should have prevailed, and for the reason that the plaintiff himself was guilty of contributory negligence, in that he had room to pass in the rear, and should not have collided with the truck, and also in approaching the truck at a speed of twenty-five miles an hour with the possibility that the truck might move at any time. We think the motion was rightly denied. The plaintiff, proceeding at legal speed on his own side of the highway, finds a truck standing a-PPes't on the opposite side. Prom all that appeal’s in the case, if the defendant' had not suddenly started the truck in the face of the approaching automobile the plaintiff would have passed -safely on his own proper side. The starting of the truck in the face of the approaching car confronted the plaintiff with the dilemma of continuing in his course (it was then too late to stop), and attempting to pass in front of the moving truck, which was converging toward liis own side of the highway, or attempting to save himself by passing-in its rear. There is nothing to indicate that'the plaintiff was given any indication that the truck would move in the the face of his right of undisputed passage. There was, therefore, no negligence in the method of approach which the court could, declare, and when presented with the dangerous situation caused -by the defendant’s negligence, it is not for. the court to appraise his conduct in attempting to pass to the rear instead of taking Ms chance of a collision by keeping ahead of the truck.

The judgment is affirmed.


author: Pee Curiam.

text:
    MORRIS SAILOR, PLAINTIFF-RESPONDENT, v. JOSEPH FINE AND JACOB FINE, DEFENDANTS-PROSECUTORS.
    Submitted May 26, 1924
    Decided August 18, 1924.
    Landlord and Tenant; — Holding Over After Termination of Lease —Double Rent — -Injury to and Repair of Property — Loss of Profits From Failure to Surrender Possession — Allegation of Special Damages Necessary.
    Before Justices Trhn chard, Mixteen and Lloyd.
    For the appellant, Patrick H. Harding.

    For the respondent, 1). Trueman Stackhouse.

   Pee Curiam.

This is an appeal from the Court of Common Pleas of Cam-don county from a judgment in favor of the plaintiff in the sum of $1,000. The defendants in the action were tenants oí a property No. 1312 Mt. Ephraim- avenue, Camden, and held over after the expiration of the tenancy for a period of two months and ten days. The plaintiff, grantee of the lessor, brought suit for damages upon three counts — (1) for double rent under the statute; (2) for damages to the property by reason of the failure to maintain the premises in the condition in which they were when received; (3) for damages and injuries to tlio property and its appointments. To the last count there was added the following: "Plaintiff was put lo great expense in repairing and replacing the property so damaged and taken away, and was deprived of the use of the premises during the time that the said repairs were being made, and was thereby occasioned great financial loss.”

The sole ground of appeal is "that the court permitted testimony on part of plaintiff under the third count of plaintiff’s complaint, as amended, to show damage by way of loss of profits of business, and for such loss at a place and time not relevant to the issue, and which testimony was prejudicial to defendants.”

Under the last allegation in the complaint the court, over objection and exception by the defendant, permitted evidence to be introduced showing loss in a bakery business conducted by the plaintiff in the city of Philadelphia, and which he claimed to have resulted from the failure of the defendants to surrender the leased premises according to the terms of the lease. The ground of the objection was clearly stated to be that the damages sought to- be proven were not within the pleadings. We think this evidence was improperly admitted. In the case of Drishman v. McManemin, 68 N. J. L. 337, the precise question here involved was considered by the Court of Errors and Appeals, and in it this language was used:

“Eeeovery cannot be had for failure to give possession at the date of the lease for profits which might have been made from a use of the premises unless the declaration contains allegations of special damages.”

In 13 Cyc. 176, the rale is thus laid down:

“If the damages sought to be recovered are those known' as special damages, that is, those of an unusual and extraordinary nature, and not the common consequence of the wrong complained of or implied by law, it is necessary, in order to prevent surprise to the defendant, that the declaration states specifically and in detail the damages sought to be recovered.”

The rale is supported by a great body of authority in this country, from which there appears to have been no dissent.

Tested by it, we think the complaint in this case wholly failed to apprise the defendants of the specific and detailed damage's which it was claimed resulted to the plaintiff's business in Philadelphia. Not only was there an absence of specific and detailed statement of damages, but a most general averment of financial loss which might as well have referred to any other form of damages as to a loss in the plaintiff's bakery business. Indeed, nothing could be more general than the term “financial loss.” It is this form that all damages in an action at law must take where breach of contract is claimed. The damages proven under this head were certainly not the common and natural consequences of the defendants’ wrongful act in holding over, and, not being pleaded as special damages, the defendants’ objection to the proofs offered should have been sustained. The amount of the verdict clearly indicates that this element of damages may well have entered into the jury’s consideration in reaching its conclusion. The judgment will be reversed and a venire de novo awarded.


text:
    E. H. LAMBERT, ALSO KNOWN AS E. HARVEY LAMBERT, PLAINTIFF-APPELLANT, v. EMILY CAHILL, DEFENDANT-APPELLEE.
    Submitted May 26, 1924
    Decided August 15, 1924.
    Sale of Land — Agent’s Contract — Terms Sustained — 'Request for Finding for Plaintiff at Trial Not in Record — Consequences— Judgment Sustained.
    Before Justices Trenchard, Minturn and Lloyd.
    Eor the appellant, John O. Benson.

    Eor the respondent, Albert Comstock.

   Per Curiam.

The Paterson District Court, after hearing and reservation of its decision, gave judgment for the defendant in this case. The action was brought by the plaintiff, E. H. Lambert, in the court below to recover a commission of three and one-half per cent, on the sale of property of the defendant, Emily Cahill, located at No. 172 Yan Houten street, in the city of Paterson. The facts disclosed at the trial were that the defendant, being the owner of the premises mentioned, employed the plaintiff to act as her broker in the sale of the property. The contract of employment was in writing, and authorized'the plaintiff to sell the property for $21,000, and gave him the exclusive right to sell for a period of three months, and thereafter until the agreement should be revoked by notice in writing, and provided, further, that the plaintiff should receive the commission if a purchaser were obtained during this period by the broker or by the owner of by anyone else upon the terms named or upon any other price or terms which might be agreed to between the seller and purchaser. There was in the agreement a further clause that if the property should be sold subsequently to any party with whom the plaintiff had been negotiating, the commission was to be paid.

The proofs farther disclosed that the property was not sold by the plaintiff, the broker, but was sold by the defendant for the price of $1(5,500, and the purchaser was one of the persons to whom the plaintiff had previously offered the premises at the price of $21,000. The uncontradicted proofs further show that the agreement between the plaintiff and the defendant was never canceled by the defendant, and was in full force and operation at the time the sale was effected. It also showed that the plaintiff had performed all of the conditions required of him under the terms of his employment. There was therefore a complete case proven on behalf of the plaintiff and no defense established to meet it. It is true there was a feeble attempt on the part of the defendant to prove that she had been imposed upon in the making of the agreement, but this wholly failed in view of the law which holds parties to their written contracts except upon proof of fraud. The defendant’s own statement on this point is that she offered to the plaintiff the right to sell for a period of three months; that the plaintiff then wrote out a card and asked her to sign it, which she did. It became, in effect, a tender on the one side of an offer of a three months’ privilege and a counter offer on the other side of a three months’ privilege, plus a two weeks’ notice of revocation.

In the absence of fraud, by attaching her signature to the agreement, the. defendant conclusively bound herself as assenting to its terms. Fivey v. Pennsylvania Railroad Co., 67 N. J. L. 627. Among the terms were that she was to pay-a commission of three and one-half per cent, upon any sale until the contract was revoked, and having sold the property without having revoked the contract, the obligation to pay became absolute, and upon this uncontradicted state of the proofs the plaintiff was entitled to recover.

In this ease we find no record of a request for finding, or motion for a judgment in favor of the plaintiff’, and under the law, as it existed prior to the act of 1916, chapter 62, the appellant would be without remedy in this court, but this act provides that where eases are submitted to the court lo he heard without a jury, any error made by the court in giving final judgment in the case shall be subject to change, modification or reversal, without the grounds or objection, having been specifically submitted to the court. In the case of Pannonia Building Association v. West Side Trust Co., 93 N. J. L. 377, .the Court of Errors and Appeals considered the effect of the statute in its application to the trial at Circuit of a Supreme Court issue, and affirmed its constitutionality. While the act is an amendment to the supplement to the “Act to regulate the practice of courts of law [Revision of 1903],” approved March 28th, 1912, it is general in its character and becomes a part of the twenty-fifth section of that act, which abolishes bills of exception and substitutes appeals. The amendment to the section follows in sequence, and seems to be equally general in character. The old portion of the section undoubtedly applies to appeals from District Courts, and there would seem to be no reason why the legislature, in dealing with the question of submitting the grounds of objection to the trial court, should not have intended it to be equally comprehensive, and, therefore, inclusive of trials in the District Court, where the judge hears the case without a jury.

Upon the uncontradicted proofs in the case the plaintiff was entitled to a verdict for his commission. The judgment in favor of the defendant will therefore be reversed.


author: Bentley, V. C.

text:
    Alfred T. Rowe, complainant, v. Harvey D. Gouse et al., defendants.
    [Submitted April 28th, 1924.
    Decided July 18th, 1924.]
    Interpleader — Necessary Features of All Suits of — Judgment Debtor Ready to Pay but Confronted with Conflicting Claim Growing Out of a Judgment Against His Creditor.
    On bill, &c.

      Mr. Edward A. Kenney, for the complainant.

      Mr. Harry-Green, for the defendants.
    Mr. J. Haviland Tompkins, for the defendant Laura K. Watson.
   Bentley, V. C.

This is a bill of interpleader, filed by a judgment debtor, whereby he seeks permission to deposit the amount of the judgment against him and hare the defendants enjoined from any further proceedings against him to collect tlie same.

The complainant is a resident of New York, against whom the defendant Gouse secured a writ of attachment, resulting in a judgment in the sum of $895.46, on November 27th, 1922, in the Hudson circuit. Thereupon, the complainant appealed to the supreme court, which affirmed the judgment. There is some confusion in the bill as to dates, but, at any rate, Gouse assigned bis judgment to another defendant, Tucker, which assignment declares that it was given for a valuable consideration. Subsequently, in the month of January, 1924, Gouse commenced an action in the Essex circuit for the'-use of Tucker against the National Surety Company and the New Amsterdam Casualty Company, the sureties, respectively, in the attachment, and appeal bonds given by the complainant in the attachment action. These corporations have demanded of the complainant that he pay the Gouse judgment.

In this state of affairs, and while Gouse’s assignee was seeking to enforce the former’s judgment, the complainant was served with a copy of an execution, on February 6th, 1924, issued on a judgment obtained in the Union circuit by the defendant Laura K. Watson against Gouse, in the sum of $3,731.82, and the sheriff of Hudson county (the judgment having been docketed in the supreme court) demands that the complainant pay to him the amount of the Gouse judgment, to he credited on the judgment in Watson v. Gouse. The bill then alleges that Laura It. Watson charges that the assignment of judgment was voluntary, and made to prevent her levying upon the judgment against the complainant.

The bill then contains the usual representations of being-able and willing to pay the judgment so obtained against the complainant, but that he is unable to. safely do so because of the conflicting claims of the defendants that he does not collude with either of them, and has not Leen indemnified; that he may be discharged from all .liability to the defendants in the premises, upon payment into court, and the usual injunctive relief.

Unfortunately, as I read the authorities, I must dismiss this bill on the narrow and extremely technical ground that it lacks one of the essential elements of an interpleader suit. Pomeroy gives as the second necessary feature of all such proceedings that the titles or claims of the defendants must be dependent or derived from a common source. In section 1468 he says:

“It is not every instance o£ conflicting claims against a person for the same thing, debt or duty, which will entitle him to the remedy of an interpleader. Where- there is no privity between the claimants, where their titles are independent, not derived from a common source, but each asserted as wholly paramount to the other, the stakeholder' is obliged, in the language of the authorities, to defend himself as well as he can against each separate demand.”

Citing a great many authorities. For a long time the state of the law appears to have been in doubt until, as Prof. Pomeroy points out, Lord Brougham, in Pearson v. Cardon, 2 Russ. & M. 606, and Lord Cottonham, in Crawshay v. Thornton, 2 Myl. & C. 1, finally settled the doctrine. How such learned exponents of the princijMvls of equity 'jurisprudence could have arrived at such a decision of: a then open question is incomprehensible to my mind. Why any man, faced with two or more claims by different persons for a thing which he' cannot safely pay to either one without risk of having to respond a second time for the same tiling to another person when he is honestly willing to deposit it with the court to he disposed of as to the rights of the adverse claimants may be made to appear, cannot be justified upon anything but tile narrowest reasoning1 and the most lavish surrender of the intellect, and every dictaie of substantial justice to a dry and harsh application of rules. In my feelings upon this subject I am supported by many eminent chancellors, not the least of whom is Vice-Chancellor Van Fleet, whose views are expressed in First National Bank of Morristown v. Binninger, 26 N. J. Eq. 345 (at pp. 349, 350). But, like him, I fell that the matter is not open that I am without discretion and that, in consequence, the bill must be dismissed.

Of course, it cannot be argued but that the claims of the defendants are entirely distinct, have no connection one with the other, and arise out of completely different proceedings, one being based upon a judgment in attachment and the other upon a levy made under a judgment in an entirely different cause to which the complainant was not a party.

This conclusion upon my part makes it unnecessary to go into any of the other questions argued upon the return of the order to show cause.

I will advise a decree dismissing the bill upon two days’ notice.


author: Foster, Y. C.

text:
    Edward J. Reilly et al., complainants, v. Louis E. Brown et al., defendants.
    [Submitted July 17th, 1924.
    Decided August 11th, 1924.]
    Conveyances — 'Setting Aside of — Alleged Fraud — Conveyor Not of Ordinary Mentality — Adequacy of Consideration — Accounting.
    On bill, &c.

      Mrs. Mary Wooster Sutton, for the complainants.

      Messrs. Reilly, Qui/nn & Parsons and Mr. Charles E. Coolc, for the defendants Louis E. Brown, Reilly Storage and Transportation Company and Mabel G. McCormick.
    Messrs. John S. Applegate & Son, for the defendants Myron Y. Brown and Augustus M. Minton.
   Foster, Y. C.

The bill in this cause seeks to have certain conveyances set aside on the ground that they were obtained fraudulently and as a result of a conspiracy among some of the defendants, or, in, the alternative, that they be decreed to be mortgages, and also for an accounting and for other relief.

The deeds attacked are, a deed from complainants to the defendant Myron Y. Brown, dated August 24th, 1920, and duly recorded and conveying certain premises in Red Bank, in Monmouth county, and a deed for the same premises from Myron Y. Brown and wife to the Reilly Storage and Transportation Co., Inc., dated May 12th, 1921; both of these conveyances were made subject to five- mortgage encumbrances, amounting to about $21,000, and also other encmnbrances, suelt as taxes, water rents, &c., amounting to about $1,500, or a total of $22,500, in liens.

It was developed at the hearing that the defendant Myron V. Brown is a nephew of Louis E. Brown, and at the conclusion of idle hearing, and before the accounting, I announced that I found Myron Y. Brown had failed to account for about $50 belonging to the complainant Reilly, which he had received as part of the consideration of $1,500, paid him by tlie Reilly Storage and Transportation Co., or Louis-E. Brown, for making the conveyance to the company above mentioned.

It was also shown that the defendant Miss McCormick is and has been the secretary of Louis E. Brown for several years, that she is a notary public, and as such that she took the acknowledgment of complainants to some, If not all, of the mortgages, chattel mortgages and deeds for the premises in question, and which are involved in this controversy, and I find no evidence to support the charge that she was a party to any fraud or conspiracy to deprive Reilly of his property.

From the proofs it appears that Reilly, the complainant, had worked for the father of the defendant Louis E. Brown, hereafter, for convenience, referred to as Brown, a number of years ago, and that he was acquainted with Brown from Ms boyhood; out of this acquaintance grew an intimacy between Reilly and Brown which resulted in a series of financial transactions between them involving thousands of dollars, and extending from June 20th, 1913, to June, 1922.

The nature, extent and amounts involved in these transactions were so varied and extensive that six days were occupied in their accounting, and hundreds of exhibits were offered in evidence.

Complainants have filed, twenty-two exceptions to the master’s report on this accounting, and aside from criticisms of clerical and other immaterial mistakes, these exceptions-are addressed to thirteen distinct transactions between Reilly and Louis E. Brown.

Considering these exceptions in their order, and before-taking up the consideration of the main issues in tlie cause, viz., the alleged conspiracy and the fraudulent conveyances produced thereby, it appears from the proofs that Reilly, in 1912, had built a large and substantial storage warehouse, part of the premises in question, and was engaged in the trucking and warehouse business. To build his warehouse he borrowed, in July and August, 1912, a total of $5,100 on mortgages from the Red Bank Building and Loan Associatioip These mortgages were paid and were canceled of record on August 5th, 1917.

In September, 1913, Reilly was struck on the head with a crane, and in December following he suffered a stroke of paralysis, and for over two years thereafter he was mentally affected, and was ill until June, 1917, and during this period he was unable to carry on his business. Dr. Young, who treated him daily from January 19th, 1914, until April 29th, 1914, states that during this period Reilly was unconscious for part of the time, that he continued to treat him from time to time until January, 1917, and that in his opinion up to April, 1917, Reilly was not capable of reading or under- , standing a legal document. The significance of this testimony is that Reilly testifies he has no recollection of many of the transactions to which the exceptions are addressed, and that he has no books, accounts, papers or documents relating to these matters, and because of this condition, and the death of his former wife in 1918, he is without corroboration on many of the items involved in the accounting.

The first exception is to a transaction of June 20th, 1913, relating to a chattel mortgage for $1,700, given by Reilly to Brown; but as counsel for complainants states in her brief that it was agreed this matter should be omitted from the accounting and that it is now referred to merely for the purpose of showing that although it took place before Reilly’s illness and continued until the mortgage was canceled in May, 1921, that therefore Brown must have known of Reilly’s impaired and weakened mentality in 1914, 1915 and 1916, and particularly in 1917, when the second transaction to which exception is taken was entered into. I am unable to follow or to adopt this line of reasoning, but as the exception is nut pressed 1 will pass to the consideration ol the second exception, which relates to a mortgage made by Eeilly and wife to George E. Borden for $6,500. Borden was the father 7 in-law of Brown, and it was Brown who obtained this loan for Eeilly, because the latter had defaulted in the payment of the dues and interest on the building and loan mortgages for 85,1-00, above mentioned, and foreclosure proceedings were begun thereon. Brown turned over the proceeds of this loan to his attorneys, Eeilly, Quinn & Parsons, and it appears they made disbursements in connection with this loan to the building and loan association, and for taxes and in settlement of judgments, &c., against Eeilly, aggregating $6,508.62, or an over payment of $98.62.

Included in these disbursements is the sum of $1,013.75, in satisfaction of a judgment held by "Myron Y. Brown against Eeilly. It is claimed Eeilly never heard of this judgment until the check showing its payment was produced on the accounting, and therefore it should not be-allowed, and it was also claimed that it should not he allowed for the fu rther reason that the testimony of the witness was not corroborated by a certified copy of the judgment.

I find no merit in either objection, and therefore overrule this second exception.

The third and fourth exceptions are also addressed to a payment from this $6,500 loan, of $752.25, made by Brown’s attorneys to Earling, Johnson & Erake, in satisfaction of a mortgage given them by Eeilly and wife in August, 1915. I am satisfied this payment was made for this mortgage, not for a judgment, as erroneously stated in the report, but I do not understand why Brown, having paid the mortgage from the proceeds of this loan, took an assignment of it to himself instead of having it canceled of record, and wiry under this assignment he kept this mortgage open as a prior lien to the Borden mortgage until August 2d, 1919, when he had it canceled.

It will be recalled that Dr. Young testifies that at the date of this $6,500 loan, on April 3d. 1917, Eeilly. in his opinion, was not capable of reading or understanding a legal document, and it appears that Reilfy was present in the attorney’s office when these disbursements were made. Reilly states he does not recall the details of .this transaction, and claims that he subsequently paid the amount of this $740* with interest to Brown by a series of monthly notes for $50 each. Over twenty-eight months elapsed between the date of - the payment to the mortgagees and the unexplained assignment of the mortgage to Brown, and the date of its cancellation. Had Reilly paid Brown the $50 monthly, as he claims, these payments would amount to $1,400, and would make the total cost to him for satisfjdng this mortgage $2,152.25. Unfortunately, on this transaction, as on ethers, Reilly is unable to produce the notes, or any cheeks, receipts or vouchers showing any such monthly payments for this particular purpose, although the record shows many monthly transactions, with notes between him and Brown, and, therefore, notwithstanding this unsatisfactory proof of payment by him, I am inclined, in the absence of a satisfactory explanation from Brown for the assignment of this mortgage to him, to sustain the exception to this item.

I might add in this connection that this $6,500 mortgage was assigned to the defendant Minton, and that the proofs show he paid the full amount thereof for the assignment, and that he had no other connection with the transaction or with Brown or Reilly, and, therefore, as to him I advise that the bill be dismissed.

The fifth exception asks that in the master’s report the words "notes and loans” be stricken out and the word "deed” substituted therefor, and the record shows that this should be done, except as to one note.

The sixth exception merely points out an error of $3.10, and this should be corrected.

The seventh and eighth exceptions relate to a credit for $1,300 allowed by the master to Brown for cash claimed to have been paid by Brown for Reilly to Edmund Wilson, and for $550 for an “Erriekson note,” under the following circumstances :

From about 1905 Eeilly had occupied his dwelling-house, part of the premises in question, under an arrangement with the owner, the late Edmund Wilson. In duty, 1919, Eeilly arranged for the purchase of the property, and through Brown lie arranged for a mortgage loan of $4,400 from the Citizens Building and Loan Association of Eed Bank, on' July 24th, 1919, and on the same day lie gave Brown a second mortgage on the property for $3,800; from the total of these loans, amounting to $8,200, disbursements were made by and through Brown, aggregating $8,221.14, and objection is made to file two items mentioned, and which are included in these disbursements, first, because Eeilly was not indebted to Wilson for $1,500, and that Brown had no authority to pay it; that Brown never paid it, and that he does not produce any check, receipt or voucher to show any such payment, and that he is without the slightest corroboration of his testimony relating to such payment; the same objections are made to the credit of 8550, Errickson note. Eeilly claims he has not owed Emckson anything since 1913.

I consider these objections to bo well taken, and these exceptions are sustained.

The ninth exception is to the master’s finding that the mortgage for $4,400 given by Eeilly and wife to the Citizens Buijding and Loan Association had been reduced by monthly payments to $3,872, on May 12th, 1921, the date when the defendant corporation was formed. Complainants contend that as the proofs show that monthly payments of $44 were regularly made from the elate of the mortgage to the date of the company’s formation, a period of twenty-three months, and amounting to $1,012, that this amount should be deducted from the face of the mortgage, leaving a balance of principal due thereon of $3,388 instead of $3,872, as reported, and this exception is sustained.

77/c tenth exception is to the allowances made to Brown for disbursements aggregating $5,731.98, from the proceeds of a mon-gage for $5,700 given by Eeilly and wife to Brown, on May 13th, 1920. All of the twenty-nine items of disbursenient, involved in this transaction, except two, are disjouted by complainants, principally because Reilly states lie does not recall them and also because it appears they were paid monthly, and, in at least three instances, over a year after the date of the mortgage. As a matter of fact it appears that two of the items, amounting to over $1,500, including' the Cavanaugh judgment, admitted by complainant, were paid by Brown in January and February, 1920, some months before this mortgage was given. The pajunent of January 19th, 1920, of $378.50, by Brown to A. L. Davison, is claimed bv complainant to be included in and secured by a chattel mortgage given by Reilly to Brown under date of February 20th, 1919, under the entry of "blacksmith’s charges,” and tin's item will be considered in connection with that chattel mortgage. I am unable to find anything in the record to support this exception, and it is overruled, except as to the adjustment of interest to the dates when the respective items of disbursements were made under this $5,700 mortgage.

The eleventh exception, aside from pointing out an error of one dollar in the master’s subtraction, accepts the master’s report that there was due from Reilly to Brown, on the price of the motor truck in this transaction, a balance of $1,8.21.25, on May 12th, 1921, the date of the defendant company’s incorporation.

The twelfth exception is to the finding of a balance of $355, with interest, due from Reilly to Brown on a note dated June 18th, 1920, and endorsed by Brown to enable Reilly to settle with one Ottman. There is nothing in the record to support this exception and it is overruled.

The thirteenth exception is to the finding of a balance due of $725, with interest, from Reilly to Brown on a note of Reilly’s for $1,422.62, and endorsed by Brown. Counsel for complainants calmly insists that as they claim to have no knowledge of the origin of this note, therefore it should be disregarded. To do this would reqrzire that the evidence of this transaction contained in the record should also he disregarded. This exception is overruled.

The fourteenth exception is to the same effect, and relates to another note of Reilly’s for $1,031, dated July 23d, 1920, and endorsed by Brown, and this exception is overruled.

The fifteenth exception is based on the alleged failure of the master to report on two chattel mortgages given by Reilly to Brown, and which were canceled of record on November 18 th, 1919.'

The first mortgage, dated July 18th, 1917, was to secure $417; the second, dated March 4th, 1918, was to secure $346.66, and it is claimed these mortgages should be accounted for by Browh, and the attention of the master and court is directed to complainants’ brief on these mortgages, filed with the master. On an examination of this brief I find the assertion made that on the first chattel mortgage for $417, one George B. Brown, for L. E. Brown, paid Reilly $310, and that the balance of $107 was a bonus charged by Brown, and no evidence is pointed ont to support this assertion. Concerning the $346.66, it is claimed that as neither Reilly nor Brown can give any information concerning this transaction, Brown should be required to credit Reilly with the amount of the mortgage, together with interest thereon from the date of the mortgage to the close of the accounting. As there is nothing to support this unique request, this exception is overruled.

In the sixteenth exception, counsel objects to the master’s statement that she admitted $1,456.96 was due the defendant. Myron Y. Brown, and she points out an error of $2 in the recording fee, and she now admits that between $1,400 and $1,450 appears to be due this defendant if it be found that he did not, through fraud, obtain from complainants the deed of August 24th, 1920. I have already stated that 1 found a balance of $50 to be owing by this defendant to Reilly, and I will treat of the alleged fraudulent procurement of the deed in its proper place.

The seventeenth exception is to the inclusion in schedule A. attached to the master’s report, of notes of (1) Juno 18th, 1920, for $600, and asserts that not over $96 is due thereon, but refers to no proof to support this assertion; (2) note of February 10th, 1920, for $1,422.62; this is disposed of in the 'brief for complainants by the statement “that complainants 'dispute the entire claim,” without any proof to justify this .•attitude, and (3) note of July 23d, 1920, for $1,031; this is also disputed, and also without any proof to justify the ■dispute, and this exception is therefore overruled.-

The eighteenth exception is again addressed to the credit of (1) $1,300, appearing on schedule A, allowed Brown for •cash alleged to have been paid to Beilly in connection with the Wilson transaction. As I have already sustained the exception to this allowance, no further consideration need be given’ it in this connection; (2) to the credit for $752.25, also allowed to Brown, and exception to which I have also sustained; (3) to an error on the part of the master in stating that the $5,700 mortgage is held by the Citizens Building and Loan Association — this mortgage, in fact, is held by Brown, and the building and loan mortgage for $4,400, now reduced to $3,300 or less, is entirely omitted from the schedule. Aside from adding the balance due on the building and loan association mortgage to the schedule, •and correcting the name of the holder of the $5,700 mortgage, nothing further is required to be considered under this exception than to remark that considerable time and labor was unnecessarily required to investigate criticisms of the master’s report, which prove to be merely captions, as, e. g., the item of the chattel mortgage of March 8th, 1921, for '$8,409.62, held by Brown. Counsel for complainants, on her brief, states the master reports the amount of, real estate mortgages to be $29,262.08, and to produce this result he in•cludes therein the amount of this chattel mortgage. The most casual examination of the schedule thus criticised shows "that the master has not done anything of -the kind. Under the caption of “Mortgages,” and not “B.eal Estate Mortgages,” he has included the mortgages covering both real and personal property given by Beilly to Brown, and others, except the building and loan mortgage of $4,400, which he omitted, as stated.

It does appear from the proofs that the master reported that there was but $6,409.62 due Brown on this chattel mortgage for $8,409.62, and as the proofs show that Brown relied on the trucks for the payment of their cost to him, he can. as counsel suggests, be left to collect what is due him thereon by the sale of these trucks.

The nineteenth, exception is addressed again to the validity of the Brown $3,800 mortgage, the Brown $5,700 mortgage, and the Borden $6,500 mortgage, and as these matters have been considered and disposed of there is no necessity for giving them further consideration.

The twentieth exception has already been considered and disposed of in connection with two other exceptions.

The twenty-first and twenty-second exceptions relate to matters that occurred' after Reilly’s property was conveyed to Myron Y. Brown, and by him conveyed to the defendant company, and if it becomes necessary they can be considered and disposed of on a supplemental accounting.

This disposes of the exceptions, except for the item of $378.50, considered under the tenth exception. After a laborious and extensive examination of the record I have been unable to find any proof to show that this amount was included as claimed by counsel for complainant in any chattel mortgage as “blacksmith’s charges,” or otherwise, and the objection to its allowance is overruled.

The master found that there was owing from Reilly to Brown, in 1921, without including interest, on six promissory notes, $4,078; that there was owing by Reilly to Brown, on a chattel mortgage dated March 8th, 1921, $6,409.62, without interest, making a total indebtedness due from Reilly to Brown of $10,489. Erom this must now be deducted the amount of $3,091.35, representing items to which exceptions have herein been sustained, leaving a balance owing by Reilly to Brown of $7,395.55, not including interest.

On August 24th, 1920, Reilly was indebted to the defendant Myron Y. Brown for about $1,400. Brown insisted upon payment, and Reilly was unable to pay, and as Reilly at this time was practically insolvent, a deed for the premises in question was executed by complainants to this defendant. Reilly and his wife state they were told by this Brown, and by the defendant Miss McCormick, the secretary to L. E. Brown, and the notary who took their acknowledgment, that they were signing a mortgage to secure the payment of this indebtedness to Myron Y. Brown, and they claim that it was not until two years later, in July. 1922, that they learned, through their counsel, that they had executed a deed for all their real estate. Myron Y. Brown and Miss McCormick deny this, and state that the Reillys well knew what they were signing, and that they were willing and glad to do so.

At the time of this conveyance there were liens upon the propert}1, in the form of mortgages, &c., amounting to about $21,000. After the execution of this deed the Reillys continued to occupy the property without the payment of rent, and Reilly used 0the warehouse 'for his business purposes and the house for his home; ne paid the water bills, continued to make the monthly payments on the building and loan mortgage, and generally continued, for about a year, to act as the owner of the property without objection and without any interference from Myron Y. Brown, and withoht any claim that he owned the propertjr, until May 12th. 1921, when the defendant the Reilly Storage and Transportation Company was incorporated, and during this entire period neither Myron Y. Brown nor Reilly paid any taxes nor any interest upon any of the mortgages that were upon the property.

From the certificate of incorporation it appears the company was formed primarily to continue the trucking and storage business in which Reilly had become engaged, that Reilly and Louis E. Brown and two others were the incorporators; Brown subscribed for one hundred. shares. Reilly for three, Gaskill for twentjr-three and Mareellus for four shares.

On the organization of the compajry, Louis E. Brown was elected president; Reilly, vice-president; Mareellus, treasurer, and Gaskill, secretary; the latter withdrew from the company ail(i sold his twenty-three shares of stock to Marcellus.

At this time, admittedly, Reilly’s business and finances, and his affairs generally, were in very bad condition, and he placed his entire reliance upon Louis B. Brown. Reilly is a man of little education and limited intelligence, and, apparently, was then, and from his conduct and his actions before me he still is, willing to be guided and controlled by anyone in whom he has confidence, including his present counsel.

He was present at the organization of the company, voted for and apparently heartily approved all of the resolutions then adopted, including a resolution to purchase from Myron V. Brown the premises in question, the purchase from Louis E. Brown of the horses, wagons, truck and appliances, and other equipment which he was then using in 1ns trucking and storage business, and which lie had never transferred to Brown nor to anyone else.

He, apparently, accepted with enthusiasm a resolution adopted by the incorporators making him vice-president of the company, and agreeing to pay him $25 wages weekly for his services to the company and gning him the use, without the payment of rent, of the home he had owned up to that time.

At the organization meeting of the company the customary «'solutions were adopted to purchase the Reilly real estate from Myron Y. Brown for $1,500- and to purchase Reilly’s personal property from Louis E. Brown, although it does not appear that Reilly had ever parted with his title to this personalty, and apparently the only claim or title Louis E. Brown had to it was represented by liis chattel mortgage of March 8th, 1921. Some general understanding was had at this meeting that Brown was to turn over to the company the notes and mortgages he held against Reilly, probably for cancellation, and that the company was to pay Reilly’s general indebtedness, which then amounted to about $300.

Reilly was present at this meeting and recalls some of. the resolutions that were adopted, and it docs not appear that he objected to anything that was done. Mr. Parsons, of counsel with Brown, proposed these resolutions, and at his suggestion the subscribed capital of $13,000 was apportioned, arbitrarily, it is claimed, between the realty and personalty by crediting $1,500 as the value of the equity in the realty and $11,500 as the value of the personalty which the company purchased from Myron Y. Brown and Louis E. Brown, respectively.

The only charge against this value of the equity was Myron Y. Brown’s claim for about $1,450, and the only claim against the personalty was Brown’s chattel mortgage nominally for $8,409.62, but actually for only $6,409.62, and it will thus be seen that according to the value stated in the. resolutions Reilly had an apparent equity of $5,091 in the personalty. Myron Y. Brown conveyed the realty to the company in consideration of. $1,500, and subject to mortgages thereon of about $21,000, and other liens amounting to about $1,500, and not including interest on these amounts.

The proof is that at this time the value of Re.ilty’s realty was $25,000, and this valuation gives Reilly an apparent equity of about $2,500 over the mortgage and other liens; adding this to the above value of his equity in the personalty it appears-that the total value of Reilly’s equity in the realty and in personal property was about $7,591, and for this Reilly received three shares of stock in the company, a job at $25 a week, and the occupancy of his home, rent free, as part of his wages. And- his indebtedness to Brown on the notes for $4,078.28, and chattel mortgages for $6,409.62, or a total of $10,487.90, without interest, assumed by the company, was not receipted for, or canceled as agreed upon by either Brown or the company, and interest on these notes has been charged to the date of the accounting, viz., June 14th, 1924, amounting to about $800.

After its incorporation the company continued to carry on Reilly’s trucking and storage business in the premises and with his equipment until June.) 1922, when it claimed it was found that the trucking branch' of the business was unprofitable, and Reilly was thereupon discharged, and was allowed to take over the trucking business, and the company sold him, from his own equipment, a horse and wagon for that purpose for $150, and notified him to vacate his home by August 1st, 1922.

During the first year of its operation the company claims to have done a gross business of about $14,000, and after paying all expenses and carrying charges it had a balance of $25.

The company claims credit for payments made by it on Beillv’s behalf since the date of its incorporation to December 13th, 1923, aggregating $2,911.80, and included in these payments is a charge for recording the deed to the company, for the discount and stamps on notes, presumably the notes from Beilly to Brown, and monthly payments as late as December 13th, 1923, on the building, and loan association mortgage, subject to which the company took title from Myron V. Brown, and also for taxes, water bills and insurance premiums, but the company fails to give Beilly any credit for the use and occupancy of his property during the same period.

Beilly was apparently well pleased over the formation of the company; he announced he was free from debt; he told a constable and others who tried to collect executions and other claims against him that he had no property, that he had sold it to the company; he acquiesced in the company’s operation of the business, in his discharge from the compan}', and even in the notice to vacate his home, and he agreed» to do so, and he made inquiries about renting another house. He continued in this complacent frame of mind until he consulted his present counsel, in July, 1922, who advised him to resist the attempt which Brown, assisted by others, about August 1st, made to forcibly evict him from his home, and as a part of this plan of resistance the bill in this cause was filed August 2d, 1922, and an amended bill was filed on November 2d, 1922. The relief prayed for therein is: (1) To have the deed from Beilly to Myron V. Brown decreed to be a mortgage, to secure the payment of an indebtedness of about $1,400; (2) to have the deed from Myron Y. Brown to the company declared void, as having-been fraudulently obtained; (3) to have the transfer of Reilly’s personal property made by Louis E. Brown to the company declared void, as being fraudulently made, without consideration and without title or authority in Brown to make the same; (4) to have the mortgage for $3,800, from Reilly to Brown, dated July 24th, 1919, declared void for want of any consideration; (5) for an accounting and especially for an accounting of bonuses and usury charged Reilly by Brown, and for other relief which has been disposed of under the exceptions.

The accounting has been had with the results stated, and it is found therefrom that the $6,500 mortgage and the $3,800 mortgage are unquestionably valid, and I find nothing in the record to support the charge of usury. . •

The proofs further convincingly show that the deed to Myron Y. Brown was understood and intended by complainants to be merely a mortgage and not an absolute eonvej'anee of all their real estate, and the proofs further show that Myrón Y. Brown treated it as such, and did not exercise any act of ownership over the property until he conveyed it to the company.

It is contended, however, by the company and by Loiiis E. Brown that if these facts are established they do not affect the company’s title to the property for two reasons:

1. Because it was a bona fide purchaser for value.

2. Because complainants are estopped from denying the corporation’s title.

In support of the first reason it is argued that the corporation had no knowledge of any defects in Myron Y. Brown’s title, even if Louis E. Brown had, which is not admitted. The answer to this is that Louis E. Brown was, in fact, the corporation; he formed it and he owned one hundred of the one hundred and thirty shares of the stock it issued; the company was formed by Brown not only to take over Reilly’s business and properties, but also to pay all of his indebtedness, including what he owed Brown on notes and mortgages, and this was not done. Furthermore, the company was not a purchaser for value, according to the resolutions it adopted, for it valued Reilly’s equity in the real and personal' property at $13,000, and all it paid therefor was $1,500 to Myron 4'. Brown, and the tax and other such liens, amounting to about $1,500.

The company took title to the personalty from Brown, who had only a chattel mortgage lien on it, and it never paid Reilly nor anyone else the value of the equity of $5,091 therein, which the company by resolution placed upon it.

At the time the company took title to the realty it was valued at $25,000. The . principal of the mortgage liens against it was $21,000. This amount and also the taxes and others liens for $1,500, and the $1,500 paid Myron Y. Brown, still leaves at least $1,000 of the value of the realty to Reilly unpaid and unaccounted for.

Furthermore, I am unable to reconcile this claim of bona fide ownership with the fact that from the date it acquired title, in Maty 1921, to December 13th, 1923, the company apparently carried on its books against the property, or against Reilly, or both, an account in which it charged him for recording the deed to it, for taxes, insurance premiums, building and loan association dues, and interest, and particularly for tile discount and stamps on notes, and for other payments on Reilly’s indebtedness to Brown, which, admittedly, it was agreed should be’paid as part of the consideration for the transfer to it of Reilly’s trucking and storage business, including all of his equipment, and also all of his real estate. In view of these facts I do not find the proofs to support this contention — that the company was a bona fide purchaser for value.

The second reason urged by defendants presents the most difficult question in the case for determination, viz., Is Reilly estopped by his conduct and acquiescence, from obtaining the relief he now seeks?

1 have recited generally, but in substance, in what this conduct and acquiescence consists, and T have indicated that I found Reilly to be an ignorant, illiterate man, who lacked sufficient intelligence to testify favorably for himself when given the opportunity. He has a certain amount of shrewdness, but is slow in thought, and hesitating and unsatisfactory in expressing his ideas. He seems to have a general idea that he is indebted to Brown for about $20,000, but he is unable to recall or to state how he arrives at this amount, and this is not surprising in view of the maze of transactions in which he and Brown were engaged for about nine years, and involving loans and payments thereon almost weekly and monthly during this period. He had the utmost confidence in Brown until July, 1922, when he first consulted counsel. He left the keeping of most of the accounts to Brown; he accepted Brown’s statements that notes and mortgages for which he gave renewals had been destroyed or canceled, when, in fact, some of them had not; he did not question Brown’s right to incorporate his business, he was glad of it. Nor did he question Brown’s right to sell all his personal property to the company and to give him three shares of stock in the company and a job at $25 a week, and free house rent. He was apparently relieved of all his anxieties, and greatly pleased over the arrangement, and he continued in this frame of mind even when discharged from his work, and even when he was ordered to vacate his home, and he willingly bought from the company one of his own horses and wagons for $150 to continue in the trucking business, and attempted to rent another home.

Throughout all these transactions Reilly was without competent independent advice. His limited mentality, which was, without doubt, further lessened by the injury to his head, and the stroke of paralysis, did not properly qualify .him to understand the exact nature and the complete effect of many, if of any, of the transactions in which he engaged with Brown and the company, and his implicit faith and confidence in Brown as a friend of many years’ standing, whose only desire and purpose in these matters was to help him, further lessened his carefulness and aroused no suspicion. The defects in Reilly’s intelligence and understanding fully explain his acquiescence and conduct, and' also account for his otherwise inexplicable pleasure over the fact that he had disposed'of his business and property that it had taken years of hard work for him to build up and acquire, and that lie had stripped himself of everything he had in the world, for three shares of stock in a company in which ho was honored with the innocuous office of vice-president, and from which he received a weekly wage of $25 for six days’ hard work, together with the privilege of living in his old home, rent free, during the pleasure of the company.

It seems to me that no one possessing ordinary intelligence could possibly act as Reilly did in this matter, and if this conclusion is correct, and from the record and my observation of Reilly on the stand, I haven’t the slightest doubt but that it is, then it follows that Reilly cannot be held to the same degree of responsibility for his acquiescence and conduct in this matter that would he charged to a person of ordinary intelligence, acting with or without competent independent advice, and he cannot, therefore, be found estopped from obtaining the relief he now seeks.

My conclusion is that the defendant company should, subject to the limitations hereinafter stated, return and transfer to Reilly all of his personal property, and also convey to him all of the real estate, and unless the parties can agree on the amount due to Reilly, Brown and the company, there should be a supplemental accounting between Reilly and Louis E. Brown, eliminating therefrom all of the items included in the present accounting, and deducting those to which exceptions have been taken and sustained. There should also be an accounting between the company and Reilly, in which the company should be charged the reasonable value for the use it has had of Reilly’s real and personal property, and should be credited for all operating expenses of the business and also for all carrying charges on this property, and also for all money paid by it on Reilly’s account, or for Reilly’s indebtedness on notes, mortgages, chattel mortgages, and including therein $1,450 of the $1,500 paid by the company, or Brown, to Myron V. Brown, for the conveyance of the property.- Such accounting between both Brown and the company and Reilly should also include any and all other items of charge or discharge which are not included herein and in the accounting heretofore had between any or all of the parties.

Upon the filing and approval of the report on these supplemental accounting, if complainants are unable or unwilling to pay the amount then found to be due Brown or the company, or both, a decree will be advised for the sale of so much of the property, real and personal, as may be necessary to provide for such payment, but should payment of such amount be made by complainants, then the transfer and conveyance of the property which I have mentioned shall be made by the company to Reilly.

The terms' of the decree in accordance with the views herein expressed may be settled on five days’ notice.


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    IN THE MATTER OF THE APPLICATION OF J. WILLARD DE YOE.
    Argued May 6, 1924
    Decided May 12, 1924.
    Counselors-at-law — Examinations—Cannot be Given Until Ful! Three Years Have Elapsed.
    Before Justices Trench-ard, Mixturx and Lloyd.
    For tlie applicant, J. Willard Dp, Yoe.

   Per Curiam.

Mr. De Yoe’s application (made in behalf of an attorney whom he represents) is for a relaxation of our rule requiring that an attorney shall not be admitted to take his examination until he has practiced as an attorney for three years; in other words, for permission to take such examination before such period of practice has expired in his case.

The application is made and urged because of the recent change in our terms of court and the change of the times of holding such examinations which follow.

We feel constrained to deny such application. As indicated, our rule (6a) provides that “no person * * * shall be recommended for license to practice as a counseior-at-law in this state unless he shall first submit himself to examination. and give satisfactory evidence of his knowledge of the principles and doctrines of the law, and his abilities as a pleader; nor shall any be admitted to such examination until he shall have practiced in this court as an attorney for the space of three years at least; * * We consider that the reason urged furnishes no ground for tlie relaxation of the rule in question.

The application is denied accordingly.


text:
    Yellow Cab Company, complainant, v. Benjamin Marks et al., defendants.
    [Heard and determined August 5th, 1924.
    Filed September 10th, 1924.]
    Trade Competition — Unfair—Color and Appearance of Taxicabs —Rights in.
    On bill for injunction. On order to show cause.

      Messrs. Babcock & Champion, for the complainant.

      Mr. Morris Bloom, for the defendants.
   Foster, V. C.

In view of the determination heretofore had at the instance of this complainant, the Yellow Taxicab Company, in which Vice-Chancellor Learning granted relief similar to that sought here, and which Vice-Chancellor Ingersoll later followed, and in view of the statements of counsel, which I assume correctly embody the facts set forth,in the affidavits on both' sides, coupled with my inspection of the cabs in question, and comparing them with the cabs of the complainant, I have reached the conclusion that as to five of the defendants, the temporary restraint asked for should be granted, or the temporary restraint embodied in the rule to show cause given by the chancellor should be continued until final hearing. In the case of what has been referred to by counsel as the lemon colored cab, Israel Myers, defendant, from my observation and comparison between his cab and that of the complainant company, I can’t see the slightest similarity in color, in design, in the words used*, nor any other feature of the cab that would deceive any other person witli ordinary eyesight either in the day time or the night time. As to him, I think the restraint should be vacated. I don’t think the complainant has established his right to restrain him from using a color which is as distinct and distinctive as the color of complainant’s own cab. 1 think Mr. Myers has what might be regarded as a unique color upon his cab, I don’t know that I ever saw its like, and I don’t know why he should not be permitted to continue in his enjoyment of it if it suits his taste. I don’t know ho-w many there are who might approve of it, but still he is entitled, he paid for it, and he is entitled to continue with that color if he pleases.

I will continue the restraint as to the others, and discharge it as to the defendant Myers. I don’t know as I can indicate what this generally means. They know now that they are' restrained from using the color of this complainant, and they can adopt any course they please to remedy the situation.