text:
    Laura E. Stone et al., respondents, v. Amy Gibb, appellant.
    [Decided February 2d, 1922.]
    - On appeal from an order of. the court of chancery.

      Messrs. Machay & Machay, for the respondent*.

      Messrs. Goult £ Smith, for the appellant.
   Per Curiam.

This appeal brings up for review an order for discovery allowed upon an ex parte application.

-The 'bill of complaint is-not verified, and the order itself is fatally defective in substance. ■

The order appealed from will be reversed.

_ ..For affirmance — None.-

For reversal — The - Chief-Justice, Trenchard, Parker,' Bergen, Minturn, Kalisch, Black, Ivatzenbach, White, Williams, Gardner, Ackefson, Van Buskirk — 13.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Benjamin A. Porter, appellant, v. Violet A. Williams et al., respondents.
    [Decided February 9th, 1922.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Poster', whose opinion is reported in US N. J. Ecj. 88.

      Mr. TF. Howard Demarest, for the appellant.

      Messrs. Kalisch & Kalisch, for the respondents.
   Per Curiam.

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

For affirmance — The Chief-Justice, Swayzb, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, Williams, Gardner, Ackerson, Van Buskirk — 13..

For reversal — None.


text:
    Ole N. Oleson et al., complainants-respondents, v. Stephen F. Somogyi, administrator, and Mary E. Evans, defendants-appellants, Harry J. Van Horn et al., defendants-respondents.
    [Submitted July 11th, 1921.
    Decided November 14th, 1921.]
    On appeal from the court of chancery advised by Vice-Chancellor Stevens, and reported in 90 N. J. Eq. 342.

      Mr. Stephen F. Somogyi, pm se, and for Mary E. Evans, defendants-appellants.

      Mr. Charles C. Hommann, for the complainants-defendants.

      Messrs. Wilson & Smock, for Helen E. Gregory,, defendant-respondent.

      Mr. John Kirkpatrick, for Harry J. Van Horn, defendant-respondent.

      Messrs. Beekman & Spencer, for Edwina M. Soper and Elizabeth J. Melick, defendants-respondents.

      Mr. Irving Lippman, for Amy G. Russert, defendant-respondent.

      Mr. Silas D. Grmisiead, for John Banker.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Stevens, and reported in 90 N. J. Eq. 342. In adopting as the opinion of this court the opinion of the vice-chancellor, we desiie to express our dissent from a statement therein which was not a controlling factor in reaching the decision made. The learned vice-chancellor said in the course of his opinion: “Mrs. Evans, at the age of sixty-eight, was past child hearing, and if her son survived her she could have but one next of kin.” This is equivalent to saying that it is presumed that a. woman of sixty-eight years of age has reached a time in her life when she is unable to bear a child. In a recent opinion by Chancellor Walker, in the case of Riley v. Riley, reported in 92 N. J. Eq. 465 (on p. 471), the chancellor, upon this subject, said:

“There is no time in the life of a woman, no matter what her age, when she is presumed in law to be unable to conceive and bear children. Sir William Blackstone says that a possibility of issue is always supposed to exist unless extinguished by the death of the parties, even though they be each of them a hundred years old. 2 Bl. Com. 125. See, also, 1 Wash. Real Prop. § 202; 2 Pros. Est. 395.

“Vice-Chancellor Stevenson, in Re Staheli, 78 N. J. Eq. 74, said (at p. 77; 78 Atl. Rep. 206) that in that case there had been no issue of the márriage, and that it was apparent that there would be none. The facts upon which that inference was based are not disclosed. And Vice-Chancellor Howell, in Re Riva, 83 N. J. Eq. 200 (at p. 205; 90 Atl. Rep. 669), speaking in Re Staheli, said that the report, in that case showed that there were no children nor any likelihood of any; hence the husband had not and could not get any interest in the wife’s lands. So far as these observations run counter to the ancient and established principle of law just adverted to, namely, that there is no period in the life of a woman when it is presumed that she may not possibly bear children, they must be overruled.”

The views thus expressed by the learned chancellor' are adopted. as the views of this court upon this question.

For affirmance — The Chief-Justice, Swayzb, Trenchard, Parker, Bergen, MintuRn, Kalisch, Black, Katzenbac5h, White, Heppenheimer, Williams, Gardner, , Van Buskirk —14. . • . ■ '

For reversal — None.


author: Per Curiam..

text:
    Joseph W. North & Son, Inc., complainant-respondent, v. Herbert S. North et al., defendants-appellants.
    [Argued November 18th, 1921.
    Decided March 6th, 1922.]
    On appeal from, a decree advised by Vice-Chancellor. Backes, whose opinion, is reported in 93 N. J. Eq. 70.

      Mr. Abe J. David, for. the appellants.

      Mr. Ralph E. Lum, for the respondent.
   Per Curiam..

The history of the litigation is adequately stated in a previous opinion in the cause by. the same vice-chancellor,' reported in 91 N. J. Eq. 390. As he "there states, .the. equity suit grew out of a judgment at law recovered by the present" appellants against the corporation respondent, and affirmed by this court in 93 N. J. Law 438. After paying the judgment,.the corporation sought-to have the money impounded generally to meet judgments of outside parties, relating to, "the subject-matter, when, and as recovered against the coaporation.

-Such-wholesale.relief the vice-chancellor denied (91 N. J. Eq. 390), saying that-.tiO invoke an. equity, against.the fund the'complainant (respondent here) “must point out with certainty-and definiteness: the " double liability as to amount, and person and establish it by satisfactory proof.” Complainant did not appeal,, but later amended the bill setting up. a specific liability within the terms of the decision, and obtained the decree from which defendant has now appealed. ” "

"We conclude that the" decree should be affirmed, for" the reasons given by the learned vice-chancellor in his second opinion (93 N. J. Eq. 70), which, of course, should be read in connection with, and as complementary to, the earlier one reported in 91 N. J. Eq. 390.

For affirmance — -Tiie Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, White, Heppenheimer, Williams, Gardner) Ackerson, Van Buskjrk- — 15. . ...

. For reversal — None.


text:
    Katazenia Luscik v. Nikolai Wieszniewski and Josefa Wieszniewski.
    [Decided March 6th, 1922.]
    On appeal from a decree in chancery advised by Vice-Chancellor Lewis.

      Mr. George E. Cutley, for the appellant.

      Mr. Eugene E. llayne, for the respondent.
   Per Curiam.

This was a bill for an accounting. The material averments contained therein were that the complainant came to this country when she was about fifteen years of age, and went to live with the defendants, who- were her uncle and aunt; that immediately after taking up her residence with them they entered into an agreement with her by the terms of which she was to pay. all moneys earned by her to them, upon the following trust: that they should support and clothe her out of the earnings, and accumulate the residue for her benefit when she should come of age, and upon her reaching her majoritjr pay over such accumulations, with interest. The case came on to be heard before the vice-chancellor on the pleadings and proofs, and he reached the conclusion that the case set out in the bill of complaint had been established by the proofs, and ordered a reference to a special master of the court to take the account. At the conclusion of the hearing upon the accounting, the special master reported that on the proofs submitted to him there was due to the complainant from Ihe defendants the sum of $2,427'.51. The report was duly confirmed and a decree entered in accordance therewith.

The ground upon which we are asked to reverse this decree is that the conclusion of the special master was not justified by the proofs taken before him. Our examination of those proofs discloses that the testimony of the witnesses called on the' one side and on the other was in direct conflict. We have examined the proofs and cannot say that the special master erred in his finding, particularly in view of the fact that the witnesses were before him, and the question as to what credit should be given to each of them was primarily one for his determination.

The decree appealed from will be affirmed.

For affirmance — The Chiee-Justice, Swayzb, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Black, Katzbnbacii, White, Heppenhbimer, Williams, Gardner, Ackerson, Van Buskirk — 15.

For reversal — None.


text:
    Frank Bucci et al., respondent, v. Stefon Popovich et al., appellant.
    [Decided February 9th, 1922.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, whose opinion is reported in 93 N. J. Eq. 121.

      Messrs. Burnett, Sorg, Murray & Duncan, for the respondents.

      Mr. Gilbert M. Garnish, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Swayzb, Trbnchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, Williams, Gardner, Ackerson, Van Buskirk — 13.

For reversal — None.


author: Walker, Chancellor.

text:
    Borough of Vineland v. Armand G. Maretti.
    [Decided May 6th, 1922.]
    1. The court will not grant leave to plead disfavored defences after time for answering has expired, nor grant leave to amend answers already filed so as to raise such defences.

      2. A motion to strike out a bill of complaint on the ground that it discloses no cause of action is substituted by rule 07 for a demurrer under the former practice; and like a demurrer admits every allegation in the bill which is well .pleaded.
    3. When a defendant is charged with fraud it is the peculiar jurisdiction of chancery to compel him to disclose the facts alleged as a fraud and all the attending circumstances, so that the court can determine whether or not a fraud has been perpetrated; and when the suit is for the recovery of property tortiously taken by defendant the bill lies because of the fraud involved, especially where defendant occupies a fiduciary position.
    4. While equity will not compel a discovery iu aid of a criminal prosecution, or of a penal action, or of a suit in its nature partaking of such character, the rule does not apply when the bill is for an, accounting for moneys alleged to have been misappropriated by defendant while acting as the agent of complainant, for in such a case the discovery sought is in aid of a purely civil suit.
    5. Where a person occupying a fiduciary position converts and embezzles money belonging to his employer he will be held to account in equity, notwithstanding his liability to prosecution for crime; but he cannot be compelled to discover any facts tending to criminate himself; yet this does npt prevent the trial of the cause under the rules of evidence in civil actions, one of which is that a witness is not bound to answer any question which would, or would tend to, criminate him; the privilege, however, must be claimed by the witness himself, whether he be a party to the cause. or not, and neither the coui't nor counsel can object for him.
    O. While it may Ibe that in cases of crime, in which the facts are known to the injured party, a civil suit founded thereon may not be brought on for trial before the injured party sets the criminal law in motion to redress the public wrong, and that proceeding has been terminated ; yet, where the injured party is without direct and positive evidence, but only reasonable and probable cause to believe that fraud has been committed to his injury, he may proceed in chancery for discovery of facts which would establish the fraud, and the defendant will be amply protected by refusal to answer any interrogatory which would, or would tend to, criminate him.
    7. Facts stated in a pleading which are not material to a decision oí the issue are impertinent, and, if reproachful, are scandalous.
    8. Averments in an answer that the allegations in the bill are wholly false and fabricated by political enemies of defendant; that accountants employed lo examine his books as ¡borough clerk -were partisans of the dominant political faction of the borough commissioners, and who failed to discover false charges, &c., to the dismay and discomfort of the adherents of those commissioners; that the bill.is not filed in good faith, but for the purpose of maintaining a colorable prosecution pending which campaign utterances by the dominant political faction may be apparently sustained, &c., are scandalous, and will be struck out.

      9. It is settled that when, a suitor is entitled to relief in respect to the matter concerning which he sues, his motives are immaterial; and where a corporation sues the motives of its officers in bringing the suit cannot be imputed to it, especially as their 'motives would not operate to defeat the suit if it were theirs individually.
    10. A bill for discovery alone cannot be sustained where it prays for answer without oath, but where a bill for relief prays for incidental discovery, the complainant is entitled to discovery without oath as prayed.
    11. When a defendant submits to answer he must answer fully; and if lie does not the complainant may have an order that he answer further.
    On motion to strike out bill of complaint.

      Mr. Louis II. Miller, for the motion.

      Mr. Thomas G. Tuso and Mr. John W. Wescolt, contra.

   Walker, Chancellor.

The bill is one for discovery and accounting. The defendant moves to strike it out for sundry reasons, among them, that there is no municipal corporation bearing the name “The Board of Commissioners of the Borough of Vineland.” The motion to strike is coupled with an anshver to be used as a defensive pleading in case the motion is denied. Counsel for defendant says in his brief that defendant, answering under a misapprehension, admitted that the complainant, by the above name, is a municipal corporation, but praj^s leave to amend Ms answer in that behalf so that he may insist upon his motion. This leave will be denied upon the principle that the court will not grant leave to plead disfavored defences after time for answering has expired (Campion v. Kille, 15 N. J. Eq. 476; Vandeveer’s Admr. v. Holcomb, 22 N. J. Eq. 555), nor grant leave to amend answers already filed so as to raise such defences. Campion v. Kille, supra; Bohme v. Rall, 51 N. J. Eq. 541, 546.

Counsel for complainant informs the court that the corporate name formerly was “Mayor and Council of the Borough of Vineland;” that it adopted the commission form of government and changed its name to “Borough of Vineland” by filing an appropriate certificate, and insists that under the authority of Jefferson v. Hotel Cape May, 82 N. J. Law 32, the unnecessary words, viz., “The Board of Commissioners of,” may be stricken out. There, on a plea of misnomer, an amendment was made changing the name of a corporate defendant, and this by the common law power to amend in courts of law. Dinsmore v. Westcott, 25 N. J. Eq. 302, is in point. There a mistake in antedating a subpoena in chancery, when in fact it had not been issued before the filing of the bill, was corrected. Amendments in equity are allowed with great liberality (Fodor v. Kunie, 92 N. J. Eq. 301); and they are not the creature of statute, but are allowed as a matter of inherent power in the court. Our Chancery act (Comp. Stat. p. 438 § 77) recognizes this by simply providing that all amendments shall be made with or without costs and on such equitable terms as the court shall direct.

The words “The Board of Commissioners of” will be stricken out and the complainant’s corporate na&ne will be amended accordingly, and hereafter the papers in this cause must be correctly entitled, viz., “Borough of Vineland.”

Another ground of objection to the bill as stated in the notice to strike is, that it was not signed by counsel. This, however, ■was not insisted upon on the argument and solicitor was permitted to sign the bill as counsel, which- he has done, and the pleading is now unobjectionable for that reason.

We come now to the meritorious question- involved on this hearing.

The bill is one for discovery and accounting. It alleges that for at least five or six years- last past the defendant w^as borough clerk of the complainant and had entire and exclusive charge, control and management of the clerical and bookkeeping departments of the borough-; that during that period he engaged in the business of buying and selling coal, either individually or in the name of some company, partnership or association under his control, and did a large and lucrative business therein; that during the world war, as clerk and manager of the water and electric light plants of the borough,, he purchased a large number of carloads of coal in the name of the borough on the pretence that the coal was-needed for the borough’s utilities, but which he caused to be diverted to his own customers for his private lucre and gain; that during that period he, with funds of the complainant,, purchased boobs, bookcases and other articles, all of which he disposed of by selling, giving away or converting to his own use; that the books of account kept by defendant during the period show that large quantities of coal were purchased and paid for by complainant, which Were greatly in excess of the needs and uses of the complainant, but that those accounts were kept in such an uncertain, vague and indefinite manner that they fail to. show how much of the coal was diverted to others or how much was charged to and paid for by it; that defendant during such period kept a set of books separate and distinct from complainant’s books, which private books show the defendant’s dealings in coal in which complainant is interested, &c. The prayer is for a. discovery of and concerning the matters- above set out, and for an accounting to the complainant for the profits made by the defendant in such dealings in coal, and fox the books, bookcases and other articles converted-and disposed of as above mentioned. The defendant filed a pleading labeled: “Objections to bill of complaint; and answer to the bill.” He submits that the bill discloses no cause of action and that the same should be dismissed, and that he should not be required to make answer, and prays that the question of law may be heard and disposed of -before the hearing of the principal case, as provided in rule 68. This is a mistake as rule 68 applies only-to defences heretofore presentable by plea; and the objections to the bill in this case are tantamount to demurrer. This comes under rule 67, which provides that a motion addressed to a pleading on the ground that it discloses no cause of action, defence or counter-claim may be, on hearing, ordered to stand over until the hearing of the cause. The defendant prays that he may be permitted to file the answer without waiver of any of the objections to the bill. He has had the benefit of this while perhaps he is not entitled to it, because he had filed an answer without awaiting disposition of his motion to strike- out, which motion will now be considered.

The objections to the bill, eight in number, upon which the motion to strike is grounded, are, generally, that it is not a purely civil bill but is a criminal proceeding because it seeks discovery and accounting for moneys and property alleged to have come to the hands of the defendant by and through divers criminal acts for which defendant would be liable to punishment in criminal proceedings; that the bill demands that defendant be held to answer for criminal offences without presentment or indictment of a grand jury, and upon the basis of such charges complainant seeks to recover from defendant divers sums of money without first instituting criminal proceedings to punish defendant; and that such a bill does not lie.

This motion to strike out is one under the rule of court 67, substituted for a demurrer under the former practice. Bigelow v. Old Dominion, &c., Co., 74 N. J. Eq. 457 (at p. 462). And a demurrer to a bill in equity admits, every charge which is well pleaded. Goble v. Andruss, 2 N. J. Eq. 66; Force v. Dutcher, 17 N. J. Eq. 165; Camden Safe Deposit Trust Co. v. Dialogue, 75 N. J. Eq. 600; Swinley v. Force, 78 N. J. Eq. 52.

Counsel for defendant argues that the bill is vague and indefinite as to the time of the commission of the acts complained of and that the bill should be dismissed because it does not appear upon its face when the alleged acts were committed. This point, however, is not specified as a ground of objection to the bill, and therefore need not be noticed. In passing, however, it may appropriately be observed that the reason why complainant does not allege dates apparently arises from the fact that it has none and that it is therefore impossible to allege any, and that is one of the very matters of which discovery is sought. Probably no bill for discovery ever set forth circumstantially and in detail all the facts concerning which discovery was sought, for, if all the facts were within complainant’s knowledge there would be no occasion for discovery. A complainant has as much right to discovery of dates as of any other matter or thing.

In Howell v. Ashmore, 9 N. J. Eq. 32, it 'was held that when a defendant is charged with fraud, it is the peculiar jurisdiction of the court of chancery to compel such fraud-doer to disclose' the facts alleged and all the circumstances attending it in order that the court may determine whether those circumstances are a fraud or not.

As the suit is for recovery of property tortiously taken by defendant the bill lies because of the fraud involved, especially as defendant occupies a fiduciary position. 1 C. J. 623 § 70.

But equity will not compel a discovery in aid of a criminal prosecution, or of a penal action, or of a suit in its nature partaking of such a character, for it is against the genius of the common law to compel a party to accuse himself; and it is against the principles of equity to aid in the enforcement of penalties or forfeitures. Story Eq. Jur. (14th ed.) § 1942. The suit at bar, however, is not one for discovery in aid of a criminal prosecution or a penal action, nor does it seek to subject the defendant to any penalty or forfeiture. It is a bill for an accounting for moneys alleged to have been made by defendant and appropriated to himself while acting as the agent of the complainant in respect of the matters concerning which his acts are declared to( be fraudulent, and those acts 'are by the motion to strike out admitted to be true for the purpose of the argument and decision of the question before me. The discovery sought is in aid of this purely civil suit.

The bill alleges that the fraudulent transactions of the defendant have been carried on over a period of five or six years, and defendant in his brief asserts that the allegations amount to charges of larceny, embezzlement and malfeasance in office. True. And he asserts that the charges constitute crimes against the state and also the federal government (the latter by reason of certain wartime statutory regulations), for which defendant is subject to punishment in criminal proceedings, and he cites statutes of limitation, some running two years, some three and some five. But I am not obliged to apply any particular statutory limitation to anjr particular criminally fraudulent act alleged against defendant, because it does not appear that statutes of limitation run against every offence charged in the bill. It is to be borne 'in mind that the allegations carry the transactions back over a period' of six years, and the longest period within which, according to defendant’s contention, criminal prosecution will lie, is five years, so that there is at least one year 'entirely free from this objection. Besides, the statutes of limitation are running daily, and upwards of five months have elapsed since the filing of the bill, so there is an additional gain in time to the complainant. The pendency of this suit of course does not bar the running of the criminal statutes of limitation; but as they more and more run our, the time during which complainant is entitled to discovery more and more runs in, assuming that defendant is thus protected.

The true rule in such a case as this, I think, is stated by the supreme court of Michigan in Warren v. Holbrook, 95 Mich. 185, Where a person occupying a fiduciary position toward complainant had converted and criminally embezzled money belonging to his employer and was held to account in equity notwithstanding his liability to prosecution for his crime, the court observing (at p. 189) :

“The fact that the acts complained of impute to the defendant the cqminission of a criminal offence, and that, if he were compelled to render an account, evidence might be produced forming the basis of a criminal accusation, does not oust the court of jurisdiction. This is a purely civil proceeding, and the only questions are, Did Holbrook retain money belonging to his employer, and, if he did, how much? He could not, of course, be compelled to discover any facts tending to' criminate himself, but this does not prevent the trial of the issue made by the pleadings under the rules of evidence in civil actions. Story Eq. Pl. § 525.”

The rules of evidence referred to I understand to mean, inter alia, the right of defendant to refuse to answer any particular question on the ground that the answer would criminate or tend to criminate him; and as this case will be referred for trial that ought to be laid down.

In Bailey v. Stiles, 3 N. J. Eq. 245, Van Arsdale, master, to whom the chancellor referred the matter for hearing, observed (at p. 248), that 'the defendants protected themselves frotm answering on the ground that their answers might incriminate them. In Vandeveer v. Holcomb, 17 N. J. Eq. 87, it was held that if a discovery is necessary equity will not require the defenclant to answer under oatb and thus be a witness against himself in a matter which will subject him to a penalty or forfeiture or to any loss in the nature of a forfeiture. But the case before me is not one for a penalty or forfeiture or one to subject defendant to loss in the nature thereof.

A question may be put to a witness though the answer may criminate or disgrace him, but the witness is not bound to answer; however, he may waive the privilege. Fries v. Brugler, 12 N. J. Law 79. The protection against self-incrimination is the privilege of a witness, but cannot be asserted by him until the question is put. He may then be compelled to give his reason so that the court may judge whether the protection claimed is valid. Conover v. West Jersey Mortgage Co., 87 N. J. Eq. 16, 18.

It is universally conceded that a question whose answer would disclose a criminating fact may be put to a witness on the stand; and that the same rule applies to interrogatories in,a bill for discovery in chancery. 3 Wig. Ev. § 2268. And that the privilege is that of the person under examination as witness, and, like all other privileges, is intended for his protection only; consequent^, it does not concern the right of the party calling him; that where the party and the witness are separate persons that witness must be left to make the claim for himself and the party may not make it for him; furthermore, that the party’s counsel may not, as such, give warning of the privilege to the witness or require the judge to do so; and that where the party and witness are identical it would seem that the same results must follow. Ibid. § 2270.

The witness himself is the only person who can claim the protection of the rule against self-incrimination. Neither the court nor the parties or their counsel can object to the witness’s answering on this ground. The question may lawfully be put whatever its tendency to draw out self-incriminating testimony, and the witness must decide for himself whether he will assert his privilege or waive it and answer. Rap. L. Wit. § 265.

It is for the witness, and not for his counsel, to claim the privilege. Wrot. Ex. Wit. 22, note.

The assertion that this is a criminal proceeding and that the bill demands that the defendant be held to answer for criminal offences without presentment or indictment by a grand jury, has no basis in fact. Nor is there any substance in the contention that the bill is bad because it seeks to recover from defendant monej'B obtained by him through criminal .fraud' without first instituting criminal proceeding’s to punish him. McBlain v. Edgar, 65 N. J. Law 634, held that the common law rule that required the institution of a criminal proceeding, and either a conviction or acquittal or some other termination of the criminal charge before bringing a civil suit by. the party injured, does not obtain here, and that in .such circumstances the party may institute the proceedings for damages promptly, but must not bring on the trial of the cause in advance of his public duty to make complaint and appear before the grand jury. The case of McBlain v. Edgar involved a rape, a single indictable offence; and it may well be that in cases of assault and battery, larceny, embezzlement, and other offences in which the facts are known to the injured part y, a civil suit founded thereon may not be brought on for trial before the injured party sets the criminal law in motion to redress the public wrong committed, and that proceeding has been terminated; but, where the injured party has no direct and positive evidence, but only reasonable and probable cause to believe that fraud has been committed to his injury (although it involve criminality), he may proceed in chancery for discovery of facts which would establish the fraud, and the defendant will be amply protected by refusal to answer any interrogatory which, would criminate or tend to criminate him; and, if he refuses to answer any interrogatory on that ground he .should so state.

The defendant in this case has answered the bill, paragraph by paragraph, as required by rule 44, but insists upon his motion to strike out being heard and disposed of under rule 68. That rule (68), as shown above, is not the pertinent one.

The answer by paragraphs is prefaced by a statement termed “General answer to the bill of complaint." • It is filled with averments which are irrelevant, impertinent and scandalous. The specific answer to the bill, paragraph by paragraph, sets up defensive matter which, if proved, would bar ihe suit, and the averments in the general answer are largely repetitional of averments in the specific answer. The first; paragraph of the general answer avers that for more than ten years prior to July 1st, 1921, defendant was clerk of the borough of Vineland, and tliat during all that time he, honestly, impartially and faithfully executed the duties of his office to the best of his skill, ability and understanding, and he says that all the charges and allegations to the contrary are wholly false and fabricated by his political enemies. Passing over some of the general averments stating facts tending to show defendant’s honesty and fair dealing, he goes on to assert that in May, 1921, a new board of commissioners was elected for the borough of Vineland, and that two of them constituted themselves a cabal or political faction to distribute to themselves the political patronage of the borough, and that during the campaign preceding the election various canards had been circulated that the public moneys had been misappropriated and misapplied in some manner, and that the books of the borough were not properly kept; that upon their assumption of office the new commissioners employed certain persons, claiming to be expert accountants, to audit the accounts and books of the borough which had been kept under the supervision of the defendant, and he charges that those accountants were employed under circumstances which constituted them partisans of the dominant political faction of the borough, and that they, by every means possible, sought to discover malfeasance or misfeasance on the part of the defendant, on the theory that he, the officer having general supervision of the books of account of the borough, would be the responsible party if irregularities should appear; and the defendant avers that liéis prepared to prove that the expert accountants employed by the dominant faction were wholly unable to discover omissions, false charges or arrears of anjr kind, &c., to the dismay and discomfort of the adherents of the two commissioners now in power, who hoped that by the audit, inspection and investigation mentioned, the campaign canards so successfully circulated would be substantiated, &c.

In Hutchinson v. Van Voorhis, 54 N. J. Eq. 439, it was held that facts stated in an answer which are not material to a decision of the matter pnt in litigation by the bill, are impertinent, and if reproachful,, are scandalous. And Chancellor McGill said (at p. 445), speaking of impertinent matter, that the answer must not go out of the bill to state that which is not material or relevant to the case made by the bill; that long-recitals, digression, stories, conversations and insinuations tending- to scandal, are of that nature, and that perhaps the best test by which to ascertain whether the matter be impertinent is to try whether the subject of the allegation could be put in issue or would be matter proper to be given in evidence.

There is no motion by the complainant under rule 67, in substitution of the exception formerly employed, to strike out the irrelevant, impertinent and scandalous matter in the answer, but the court, of course, can strike such out of its own motion.

The averments of political activity and chicanery certainly have no bearing upon the merits of the case sub juctice, and are therefore impertinent; they are scandalous also because they are reproachful to the officers of the complainant whose conduct is denounced by the defendant.

The general answer also contains the amazing charge that the filing of the bill is not in good faith for the purpose of actually benefiting Yineland, but for the sole purpose of maintaining a colorable prosecution pending which the campaign utterances of -the present dominant political faction may be for the time apparently sustained, at least in a measure, and with the further hope that by the lapse of time the same may be forgotten in recurring future events.

If anything- is well settled in the law of this state it is that when a suitor is entitled to relief in respect to the matter concerning which he sues, his motives are immaterial. Bull v. International Power Co., 84 N. J. Eq. 6, 10. See, also, Davis v. Flagg, 35 N. J. Eq. 491. On the face of the bill the complainant has a cause of action, and if the commissioners individually were the complainants their motives could not be thus challenged; but the commissioners are not the complainants; the complainant is the corporate entity known as the borough of Vineland, and certainly no bad motives can be imputed to it. The whole of the general answer, filled as it is with impertinence and scandal, will be struck out. Anything in it which may be pertinent is merely repetitional of matters pleaded in the specific answer to the bill of complaint.

Now, it is perfectly apparent that no issrre could be framed upon these impertinent and scandalous averments which would have any relevant bearing upon the case made by the bill. The defendant has gone outside of the bill for these averments which he perhaps hopes to import into the litigation. If'he has committed the frauds imputed to him he will have to account, and it makes no difference if they were discovered and are being-prosecuted by political enemies. On the other hand, if the charges in the bill are untrue, whether willfully or mistakenly, is equally a matter of indifference to the court. “If the defendant is innocent the trial will vindicate him.

There is also matter in the specific answer which will be struck out. In paragraph 4 it is stated that the charge contained in the fourth paragraph of the bill is wholly false and fabricated. The rule of pleading requires that facts, and not comments or characterizations, shall be stated. This will be struck out. 'Paragraph 8 of the answer, answering the like paragraph in the bill, concludes with an averment that “though not germane to the present litigation” defendant taires occasion to deny the allegation contained in the bill that the financial affairs of the complainant are in a deplorable condition and says that on the contrary its affairs are in- a flourishing condition, and that the allegations to the contrary are set forth for a purpose intended to have some political bearing on public affairs of Yineland. It is hard to understand why counsel should have inserted .such an averment in an answer, starting as it does with an admission that it is not germane to the litigation. Not being germane, it is irrelevant; and it is also impertinent and scandalous. It will be struck out.

And as the defendant has answered, complainant has got the discovery it prayed for, unless it desires to treat the answer as not sufficient in certain particulars. For instance: The bill prays, inter alia,, that defendant “set forth and declare whether or not in his coal dealings with complainant, he was acting for himself, and if not, then that he state fully and particularly for whom he was acting, whether for a firm or partnership, and if so, who were the individual members thereof, and that he set forth their respective places of residence and post-office addresses; and that if he was acting for a corporation, then for what corporation, and under the laws of what state the same was incorporated.” The defendant answers (paragraph 3) thus: He “admits that for the period, or part of the period mentioned ixi paragraph 3, he has been engaged in the business of buying and selling coal, either for himself individually or in the name of some company, partnership or association, and has done a large business.”

And (paragraph 11) thus: He “denies the allegation of the complainant that he used the credit of the complainant for his own benefit or the benefit of any person, firm, corporation or partnership for which he was acting.”

His denial that he used the credit of the complainant for the benefit of himself or any person, firm or corporation for which he was acting, does not excuse him from setting forth and declaring for whom he was acting, whether himself, a firm, partnership or corporation, &c., which he admits doing in a general way.

When a defendant submits to answer he must answer fully. Manley v. Mickle, 55 N. J. Eq. 563; Thompson v. North, 67 N. J. Eq. 278; Salem v. State, 76 N. J. Eq. 264. And if he does not answer fully the complainant may have an order that he answer further. See Manley v. Mickle, supra.

The result reached is that the motion to strike out the bill will be overruled, with costs; the answer will stand, with leave to the complainant to apply for an order for further answer in the particulars mentioned, if it shall be so advised.


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    In the matter of the application on behalf of Leo Arthur Vieweger, an infant, for sale of lands, &c.

    [Decided May 15th, 1922.]
    1. The mother oí an illegitimate minor child is its natural guardian and is bound to maintain it; but this court has no jurisdiction to compel her to do so, and the extent of her duty in that regard arises only when she aslcs for an allowance for that purpose out of its estate.
    2. As a widow is not, as a general rule, bound to support her minor child out of her own property if the infant has means of its own, and, as she is entitled to indemnity out of its estate for money expended by her for its maintenance and education within proper limits, so the mother of an illegitimate child, who is ordinarily in the same situation as though she were a widow, is entitled to the same sort of indemnity.
    3. When an allowance for past support and education of an infant is prayed for on behalf of a parent or guardian, the court will make such an allowance only as it would have made if the same had been asked for in advance; and in fixing such allowance the court will not do more than indemnify for actual disbursements, and is bound to set up the statute of limitations in favor of an infant against a demand of a mother, even though the minor does not desire that bar to be interposed, unless the case discloses some circumstance which renders such defence inequitable.
    4. The guardian of an infant whose parents have little income may use the income of the estate of the child for its education along lines for which it shows special aptitude.
    5. The question of the expenditure of the personal estate of an infant is generally left to the judgment of his guardian in the first instance, subject to approval on the settlement of his accounts; and his judgment on the question of the amount of such expenditure is not subject to judicial revision so long as the guardian exercises a fair and honest discretion.
    6. It is to protect minors that guardians are appointed for them to conserve their estates, and to see to it that their property is not wasted; and this, because of the real or supposed incapacity of infants’ to make judicious contracts; and a contract which the law would avoid, if made by an infant, the court will not allow a 'guardian to make for him.
    7. When so ordered and directed by the chancellor, a special guardian of an infant may lawfully exercise the powers of a general guardian with reference to the proceeds of the sale of the infant’s lands which come to his hands as such special guardian under the act relative to the sale of infants’ lands. Gomp. Stat. p. 2804.

      On application by guardian for directions, &c.

      Mr. Joseph'Thompson, guardian, pro se.

   Walker, Chancellor.

On July 12th, 1917, Hon. Joseph Thompson, of Atlantic City, was appointed special guardian of Leo Arthur Yieweger, of Weymouth township, Atlantic county, and there came to the hands of the guardian the sum of $6,000, which he invested on first bond and mortgage, and he now has on hand the sum of $1,620 'interest on the mortgage, no part of which has been disbursed. The infant is an illegitimate son of Professor Leo Yieweger and Emma Hensel, who are and have been living together as man and wife since July 30th, 1903, no ceremonial marriage having been contracted between them because the professor has a wife living in Germany, who deserted him there many years ago and has refused to come to this country and join him. The son of Professor Yieweger and Emma Hensel was born May 2d, 1904, and is therefore now eighteen years of age. The mother of the infant has requested the guardian to reimburse her for the maintenance and schooling of the child, and that the boy be allowed sufficient money to> purchase an automobile to use in going from his mother’s house, in Estelville, to Ocean Citjq to attend a summer school. Heretofore he has attended school in Atlantic City, graduating from the high school there. These natural parents appear not to be in a position to give the boy the education which they and he think he is entitled to have. The guardian says he is in doubt as to what course should be pursued with reference to the accumulation of interest in his hands, but believes that it should be applied at least from this time on to the care and education of the minor, and asks the advice of this court in the premises. Letters of the mother and her son to the guardian are annexed to the petition. The boy is bright and has exalted ideas, as his letter to Judge Thompson indicates.

The mother of an illegitimate child is its natural guardian and bound to maintain it. Friesner v. Symonds, 46 N. J. Eq. 521. By the common law an illegitimate child is nullius films, tlie son of no one (Ibid. 527), but our statutes establish the relation of parent and child between a mother and her illegitimate offspring. Ibid. 528. Thus, it appears that the mother of this boy is bound to support him; but this court has no jurisdiction to compel a parent to support an infant child, and the question of the extent of a parent’s duty in that regard arises only when a parent asks for an allowance for that purpose out of the child’s estate, as is done in this ease. Alling v. Alling, 52 N. J. Eq. 92. The father is eliminated from this case, whether he is of ability to support the boy or not. I presume support from him could only be compelled, if at all, in proceedings by the overseer before a magistrate for which there appears to be no necessity. As a general rule a widow is not bound to support her minor children out of her own property if they have means of their own, and she is entitled to indemnity out of their estate for money expended by her for their maintenance within proper limits. Pyatt v. Pyatt, 46 N. J. Eq. 285. The mother in this case is practically in ihe same situation as though she were a widow. When an allowance for past support of an infant is asked for on behalf of a parent or guardian the court will make such an allowance only as it would have made if it had been asked for in advance. And in fixing such allowance the court will not do more than indemnify for actual disbursements. And this court is bound to set up the- statute of limitations in favor of an infant against a demand of a parent, even though the minor does not desire the bar to be interposed, unless the case discloses some circumstance which renders such defence inequitable. Alling v. Alling, supra. The guardian, of infant children whose parents have a small income, maj1- use the income of the estate of the children for their education along lines for which thejr show a. special aptitude. In re Alexander, 79 N. J. Eq. 226. But the court of chancery does not exercise jurisdiction to direct in advance expenditure by a guardian out of his ward’s property unless there be special circumstances calling for such direction.

In re Hannah Barry, 61 N. J. Eq. 135, the application was to use part of the principal of an infant’s estate for her support, and Vice-Chancellor Emery observed (at p. 140) that the general policy in this state has been to leave the question of the necessit3r of the expenditure-of the personal estate, both income and principal, to the judgment of the guardian, in the first instance, subject to affirmance on the settlement of his accounts, andl that in all ordinary cases this course affords protection both to the guardian and the infant.

Where one acting in a fiduciary capacity is directed to apply so much of the income of a fund to the support of an infant as in his judgment may be necessary, the question as to the amount to be so applied is in the first instance committed to him, and his judgment on that question is not subject to judicial revision so long as he exercises a fair and honest discretion. Read v. Patterson, 47 N. J. Eq. 595.

The application of the above principles to the case in hand results in instruction to the guardian to reimburse the mother for the care and support of her infant son, if in fact she has supported him, during the period of six' years last past, as the statute bars her right to recovery for a period anterior thereto, no circumstance appearing which renders such defence inequitable ; that he expend sufficient money out of the boy’s income, either future or accumulated, to provide him such an education as the guardian thinks he should properly have, and along lines for which he appears to show a special aptitude. Now, as to allowing the boy sufficient money to purchase an automobile to use in going from his home, in' Estelville, Atlantic county,, to Ocean Cit3r, Cape May county: For some time he attended school in Atlantic Cit3r. To do so he was obliged to go from Estelville to Mays Landing, five miles, to take a train to Atlantic Cit3r, which is about twenty-three miles. To go to Ocean City he will have to go to Mays Landing and there take a train to Ocean City, about twenty-two miles, unless he gets an automobile. If he owned an auto he could, I assume, proceed all the way to Ocean City in it, as he could have done to Atlantic City, if he had had one. As he was obliged to go from Estelville to Mays Landing to attend school in Atlantic City, he can, of course, do the same thing in order to go to school in Ocean City. It seems to be a matter of some impropriety to purchase an automobile for a minor out of his estate and turn it over to him. It is to protect minors that guardians are appointed for them to conserve their estates, and to see to- it that their property is not wasted. And this, because of the real or supposed incapacity of infants’ minds to make judicious contracts. See La Rosa v. Nichols, 91 N. J. Law 355, 357; reversed, but on other ground, S. C., 92 N. J. Law 375. A contract which the law would avoid for the infant’s protection, if made by him, the court will not allow a guardian to make for him. Therefore, I may say that I see no justification in law for the purchase for this boy of an automobile, the cheapest of which would be expensive, and which also would be expensive to maintain and operate. This request should be denied.

With respect to any amount to be paid the mother for expenses incurred in maintaining and schooling the boy within the period of statutory limitation, and, for allowances for his future maintenance and education, the guardian must exercise his own judgment as to necessitjr and reasonableness, subject to approval on the settlement of his account.

Judge Thompson is the special guardian'of Leo Arthur Yieweger, appointed under the act relative to the sale of infants’ lands (Comp. Stat. p. 2804), and is not his general guardian. The question is: May the court lawfully delegate to a special guardian appointed under this statute the powers of a. general guardian with reference to the control and disposition of the proceeds of the sale made by the guardian of an infant’s interest in real estate? This question, in my opinion, is to be answered in the affirmative. Section 9 of the-act provides that when any special guardian appointed under it shall have sold the lands of an infant and has accounted, it shall be lawful for the chancellor to order and direct him to pay the proceeds, after deducting commissions and expenses, to the general guardian of the infant. In the Matter of Anderson, 17 N. J. Eq. 536, the court of errors and appeals held that an appeal would not lie from an order of the chancellor refusing to direct a special guardian appointed by him to pay over the moneys derived from a sale of the minor’s land to the general guardian; and in the opinion Chief-Justice Beasley, speaking for the court, said: .“The chancellor conceiving, apparently, that it was not for the interest of the infant to suffer these moneys to be removed from the supervision of a court of equity, refused to grant the application, and it is from this order that the present appeal has been taken.” And it was concluded that the order refusing the transfer of moneys from the special to the general guardian lay altogether in the discretion of the chancellor, and on that account was not appealable.

Observation on this score might well end here, but it is perti-’ nent to make reference to the condition of the bond of a special guardian as provided for in section 2 of the act for the sale of infants’ lands. It is “for a just and faithful performance of the trust reposed in such guardian and for the observance of such orders and directions as the chancellor shall from time to time make in the premises in relation to such trust.” This clearly contemplates that the guardian shall perform the trust under such orders and directions as the chancellor shall from time to time make during its continuance. It cannot be thought that if tire funds were not turned over to a general guardian the court would not permit their administration for the benefit of the infant during his minority, especially in a case like the instant one, where the income at least is needed for the infant’s maintenance and education. That is not all: The first section of the act provides that from the institution of proceedings for the sale of infants’ lands, the minor shall, so far forth as relates to the property sought to be sold, its proceeds and income, be considered the ward of the court of chancery. A ward in chancery is an infant who is under the superintendence of the chancellor. Bouv. Law Dict. (Rawle’s Rev.) 1210.

I am clearly of opinion that a special guardian of an infant may lawfully exercise the powers of a general guardian with reference to the proceeds of the sale of the infant’s lands which come to his hands as such s]oecial guardian under the act relative to the sale of infants’ lands (Comp. Stat. p. 2804), when so ordered and directed by the chancellor.

The guardian will be entitled to five per cent, commission on the income. No commission on the corpus will be allowed until the guardianship ends on the infant attaining his majority, three years hence.


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    A. Lincoln A. Steelman et al. v. Moore Brothers Glass Company.
    [Derided May 24th, 1922.]
    Statutory fees for drawing and service of notices, when they are printed and mailed to large numbers of respondents — stockholders and creditors of corporations, cestui que trust, or the like — are not taxable in the costs under the fee bill (Comp. Stat. p. 2280), but proper compensation for the services performed will be included in the allowance to the officer actually doing the work, and the expenses thereof will be allowed in the disbursements.
    On motion for taxation, of fees for drawing and serving notices.

      Mr. Austin II. Swackhamer, for tlie motion.
   Walker, Chancellor.

Orders to show canse were made in this case on December 20th, 1920, and December 12th, 1921, on creditors and bondholders of the defendant company, with direction that copies thereof be served by mailing the same to the respective post-office addresses of the parties mentioned, with postage prepaid, as is usual in such cases. This was done. The case is finished, and it has been ordered that the trustee of the defendant company have costs and counsel fee out of the fund raised in the suit, and that the balance be distributed, as in the order therefor- directed. The solicitor of the trustee has applied to have taxed costs of serving the orders to show cause above mentioned as notice to the respondents. This will be denied, and the clerk will be directed not to allow fees for making copies, typewritten or printed, which were served by mail, or for serving them. That does not mean that those services are to be performed gratuitously or at the' expense of the trustee or its solicitor, as the making and serving of the copies of the orders are taken into account in making allowance to trustee or solicitor, whichever did the work, and the expense incurred is to be allowed as a disbursement.

This matter was set at rest by Vice-Chancellor Pitney many years ago in a memorandum which he wrote but did not publish. It is entirely dispositive of the present application, and the importance of the deliverance by way of information to the members of the bar, of the court’s construction of the fee bill, calls, I think, for its publication now. It was mitten in the case of Ross v. American Employers’ Liability Co. (docket 18 p. 788), and is as follows:

“In this case a bill was filed to wind up an insolvent corporation. An order appointing a temporary receiver was made, and it provided that the creditors and stockholders of the company show cause, on a day named, why the temporary receiver' should not be appointed permanent receiver; and the order further provided that within five days a copy of the order should be mailed to each creditor and stockholder of the company whose address could be ascertained. On the return day of the order the court refused to continue the appointment of the temporary receiver, and appointed a permanent receiver to wind up the Compaq, who. has since distributed a portion of. its assets. Immediately after the appointment of the permanent receiver the question of compensation for the temporary receiver and his counsel, who were the solicitors of the complainant, was brought before the court, and it was ordered that there be allowed to the temporary receiver the sum of $1,000 in full for his compensation as such temporary receiver and in full of. the compensation of. his counsel in New Jersey and in New York to be paid by him. Allolwiance was also made to other counsel who appeared in opposition to the continuance of the temporary receiver. The solicitors and counsel thus provided for took no further part in the conduct of the proceedings, the permanent receiver acting as his own solicitor* and counsel.

“Upon the .winding up of the affair an order was made that the receiver pay the taxed costs of the solicitor of the complainant in the bill. Those costs were at first taxed at $70.50, but the solicitors declined to- receive that amount, and upon application to the clerk he made a taxation of further costs,, which is composed, mainly, of two items, as follows:

“ ‘Copies of order appointing temporary receiver.. $276.80 Serving copies of order...................... 245.60’

“Upon inquiry of the clerk he states that he allowed the solicitors for six hundred and fourteen copies, at five cents per folio, of the order which was mailed to the creditors and stockholders, amounting to $276.30, and for mailing the same forty cents for each .copy, amounting to $245.60; and he justifies the allowance under this clause in the chancery fee bill — ‘For drawing notice of every motion, copy and service, forty cents/

“The receiver moves to strike out those items, and with them all the costs of making the additional taxation, which items amount to about $3.

“The question raised i® of much importance, as the mode of giving notice to creditors and stockholders of insolvent corpora1 tions adopted in this case is the one usually 'adopted by the court, and many thousands of notices are sent through the mail each year by order of the court.. This is the first time, so far as brought to the knowledge of the court, that such a taxation has ever been made. The expense and labor of executing an order of that kind has always been taken into' account in fixing the compensation allowed to the counsel and the'receiver. The notices mailed in this case were, as usual, printed on the back of postal cards, and the original cost of the postal cards and the cost of the printing were proper items of expense to be allowed either to the solicitor or receiver, whichever incurred it. Usually it is paid by the receiver, if he had any funds to do so.

“It is clearly not within the letter of the above-quoted provision of the fee bill, and, in my judgment, is not within the spirit of that provision.

“The cost of preparing printed copies of such an order and mailing the same, and the labor connected therewith, bear no kind of proportion to the fees allowred for drawing and serving a notice of a motion in the cause, and tend to seriously increase the cost of winding up a corporation, as it is the practice of the court to order notices to be sent by mail to creditors and stockholders of every important order and direction given by the court in each suit of that character.

“In the ease in hand the receiver was directed on several occasions to mail notices of this character to a great number of parties, and if allowed compensation for that on the basis of the taxation allowed in this instance, his fees would amount to several thousand dollars.

“I think the receiver’s motion must prevail, and the taxation of the clerk be overruled.”

The item in the fee bill quoted by the learned vice-chancellor is to be found in Comp. Stat. p. 2280. It is a very old provision and was enacted at a time when there was little or no service of notices bj? mail, and contemplated the drawing- of than in manuscript, copying them by hand, and the actual service of them on the respondents personally. To allow full fees for service on respondents when it is made by wholesale on large numbers, by printing the notices (copies of orders often) and sending them by mail, would amount in many cases to hundreds and even thousands of dollars, and this for services never actually performed by solicitors, or anyone for them, that is, for notices never actually drawn or served by them, thus entailing disproportionately large costs to litigants; and I quite agree with the vice-chancellor that such taxation is neither within the letter nor the spirit of the fee bill.

The statutory fees for drawing and mailing the notices in this case will not be taxed, but the actual expenses thereof will be allowed in the disbursements, and proper compensation for the services actually performed will be included in the allowance to' the trustee or the solicitor', whichever did the wtork.

This ruling does not affect notices, whether in that form strictly or by way of copies of orders, served personally on adversary parties in the "usual and orderly conduct of causes, as those, of course, are taxable under the fee bill.


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    Mary K. Bissell, petitioner, v. Henry C. Bissell, defendant.
    [Decided May 24th, 1922.]
    1. Neither divorce nor nullity of marriage may be decreed upon the uncorroborated testimony of the petitioner.
    2. Neither divorce nor nullity of marriage may be decreed upon .the uncorroborated admission of the defendant.
    3. But, when a defendant refuses to appear before physicians, appointed inspectors to examine him to the end that they may form and express an opinion, as to whether he is incapable of performing the act of generation and has on his part any impediment to the consummation of marriage, such conduct, coupled with the other evidence in the cause, may be sufficient to warrant the conclusion that defendant was at the time of the marriage physically and incurably impotent.
    4. Corroboration need not be the testimony of witnesses; it may be furnished by surrounding circumstances adequately established.
    5. After parties have cohabited for three years, and if at the end the marriage remains unconsummated, that being made to appear by the woman remaining a virgin, the man’s impotency is to be presumed, and this is called triennial cohabitation; but if they have cohabited for a less period and other facts satisfy the court of impotence, it may be deemed established.
    On application for decree of nullity of marriage for impotence, on master’s report and proceedings for inspection of defendant.

      Mr. W. Holt Apgar, for the petitioner.
   Walker, Chancellor.

The parties, petitioner and defendant, were ceremonially married on November 27th, 1920. The petition was filed April 14th, 1921, and it avers that at the time the marriage -took place the defendant was physically and incurably impotent to consummate the same; that petitioner was ignorant of defendantls impotence at the time, and has not subsequently ratified the marriage; that the parties are bona fide residents, &c. The prayer is that the said pretended marriage may be declared by the decree of this court to be null and void pursuant to the statute. The defendant did not answer and- the case was in due course referred to a special master, who has reported, inter alia, that at the time of the marriage and at the time the petitioner separated from defendant (April 15th, 1921), the defendant was incapable of having sexual intercourse, but -whether this resulted from any malformation of the sexual organs or from some other cause, he was unable from the evidence produced before him to determine; and he further reported that in his opinion a medical examination and inspection of the defendant was required to determine whether or not he whs physically and incurably impotent at the time of his marriage to the petitioner. An order was made on the defendant to show cause why an order should not be made that he be examined by one or more physicians for the purpose of ascertaining whether or not he was physically and incurably impotent, and why a commission.should not issue for that purpose pursuant to the -practice of this court. See Bid. N. J. Div. Prac. (2d ed.) 252. The order wras served and on the return da}*- the defendant appeared in person and said that he had nothing to urge why a commission should not issue. Thereupon an order was made appointing two physicians inspectors to examine the defendant and report as to wdiether he was incapable of performing the act of generation and had on his part any impediment to prevent the consummation of his marriage and whether he wte incurably impotent, and that he submit himself to the examination and inspection at the time and place and in the manner specified in the order. Ibid. 253. A commission was- duly issued and such proceedings were thereupon had that the master has reported that the defendant and inspectors attended before him, and the defendant was identified as the party to be examined, and the inspectors were swmrn and the master fixed the time and place for the examination, with reasonable and proper regard to the washes of defendant; that at the time of his identification the defendant said that by advice of counsel he would not be present, and the examiners have made return on the commission that they attended at the time and place appointed, but that the defendant did not appear.

Defendant having refused to submit to examination, petitioner moves for a decree nisij and the case turns upon the question of corroboration of petitioner’s testimony. She said they lived together and occupied the same bed from the time of their marriage up to April 15th, 1921, and that during all that time her husband never had sexual intercourse with her and never attempted to have; in conversation he told her that he did not know that he could not. Dr. E. S. Hawke, a physician and surgeon, who has practiced for twenty-five years, testified that he made a physical examination of Mm Bissell on May 31st, 1921, and found her to be a virgin. Charles McGuire testified that the parties lived, with him) on his farm after they were married; and that after the citation was served on the defendant he' said to Mr. McGuire that he got “the papers,” and that if the grounds upon which his wife was suing are true, it looked as though she would get a divorce; to which McGuire replied by asking him if he was weak in that respect and'he answered, yes, he was.

Obviously this is lawful testimony tending to show that the defendant' at the time of his marriage' was physically and incurably impotent. If the wife’s testimony is to be believed, and there is no< reason to doubt it, the fact of impotency may be inferred; but, as has been repeatedlj decided, neither divorce nor nullity of marriage may be decreed upon the uncorroborated testimony' of the petitioner. Bolmer v. Edsall, 90 N. J. Eq. 299. Nor can a decree of divorce be granted on the uncorroborated admissions of a defendant. Garrett v. Garrett, 86 N. J. Eq. 293. And this applies as well to a suit for nullity. Therefore the question sharply presented is, Is the declination and refusal of the defendant to submit to a physical examination evidence' corroborative of the petitioner’s'testimony from which the fact of impotence may be inferred ? This question is to be answered in the affirmative upon the authority of at least two unreported decisions in this court.

In Benz v. Benz (docket 23 p. 747), the late Yice-Chancellor JEtmery, in a memorandum, held:

“The evidence of petitioner in this case, taken in connection with defendant’s admissions to petitioner’s sister and her refusal to appear and submit the inspection, as ordered by the court, are sufficient in my judgment to warrant the conclusion that the defendant was at the time of the marriage, and is still, incapable of marital intercourse, unless an operation be performed. As the court has no power against defendant’s will to require the operation to be performed, and as, moreover, the effect of any operation on defendant’s capacity for intercourse is purely speculative, I think petitioner is entitled to a decree for divorce.”

While Yice-Chancellor Emery cites no authority for his opinion in the Benz Case, he probably had in mind the English doctrine mentioned by Mr. Bishop in 2 Bish. M., D. & S. § 1305, where he says that when a man to avoid compliance left the country, the court, finding the other evidence sufficient, dispensed with this. The oilier evidence in the Benz Case satisfied the vice-chancellor; and the evidence in the ease at bar, having regard of the inference to be drawn from defendant’s refusal to submit to inspection, is satisfactory. It consists of the fact that the petitioner remains a virgin after having been married and occupying the marriage bed with her husband for several months, and he having made statements that are tantamount to an admission that he is impotent.

After parties have cohabited for three years, called “triennial cohabitation,” and at the end, if the marriage remains unconsummatecl, that being made to appear by the woman’s remaining a' virgin, the man’s impotency is to be presumed; but if they have cohabited together for a less time and other facts satisfy the court of impotence, it may be deemed established. Ibid. § 1286 et seq. This doctrine wias given effect by YiceChancellor Backes in Tompkins v. Tompkins, 92 N. J. Eq. 113, where he held that triennial cohabitation is not essential to show a husband’s impoteney when it may be proved before the end of that period, although it is to be presumed after that time.

In Kimberly v. Kimberly (docket 42 p. 198), the defendant admitted his impotence and the special master found that the fact admitted was corroborated by the refusal of the defendant to submit to a physical examination. No commission was issued because the defendant was in the State of New York, where process of this court does not run, and where physicians can testify as to their professional knowledge only upon an express waiver of the patient, whose privilege is absolute unless waived. And the learned master observed that as a matter of corroboration it is immaterial whether the refusal is to submit to an examination ordered by the court or a refusal absolute in character, after knowledge that.the charge made against him is that of incurable impotence; that on principle the refusal in each case has the same effect as corroboration. This I take to be the law. In the Kimberly Case a decree of nullity was made upon the master’s report.

Upon the strength of these hitherto unreported cases of Benz v. Benz and Kimberly v. Kimberly, which are precedents directly in point, I hold that in a suit for nullity of marriage on the ground of physical and incurable impotence, where the petitioner’s testimony makes a case, except for the requirements of the corroboration rule, sufficient corroboration is afforded by the refusal of the accused spouse to submit to a plrysieal examination by physicians to the end that they may form and express an opinion as to the affliction of the party.

Corroboration need not be the testimony of witnesses; it may be furnished by surrounding circumstances adequately established. Rogers v. Rogers, 89 N. J. Eq. 1; Parmly v. Parmly, 90 N. J. Eq. 490; Meek v. Meek, 92 N. J. Eq. 23.

In the instant case tire testimony satisfies me that the defendant was physically and incurably impotent at the time of his marriage to the petitioner, who was ignorant thereof and has not ratified the marriage, and, therefore, she is entitled to a decree of annulment nisi. P. L. 1907 p. 480 § 20.

Decree nisi accordingly.


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    Frederick J. Berenbroick v. Sophie Hofstetter et al.
    [Decided June 13th, 1922.]
    1. The provision in the Chancery act (Comp. Stat. p. Jill § 8) that no subpcena for appearance shall issue until after bill filed is merely directory and not mandatory; and unless defendant comes in promptly and moves to set aside the process for such technical irregularity, the cause may proceed regularly, if the bill be filed before the return day named in the subpoena.
    2. Crotvell v. Botsford, 16 N. J. Eq. Ji58, followed and applied.
    On final hearing on pleadings and proofs.

      Mr. Max A. Sturm, for the complainant.

      Miss Sarah D. Smyth, for the defendants.
   Walker, Chancellor.

This is a suit for specific performance. The complainant agreed to sell and convey to the defendants lands in Hudson county, by deed of general warranty free from all encumbrances except a certain mortgage. The defendants refuse to conclude the purchase by accepting a deed from the complainant,■alleging in their answer that—

“The complainant cannot convey to defendants the premises in fee-simple by full covenant and warranty deed, free and clear of all encumbrances, except a mortgage of $4,000, according to the terms of the contract, for the reason that there is an outstanding interest vested in Sylvia Reingold [formerly Schneider], which is an encumbrance or lien upon the premises in question, and the title is «therefore not good and marketable.”

This is defective as a pleading as it states no facts but only a conclusion of law. Chancery rule 44 requires that all pleadings must contain a plain and concise statement of the facts on which the pleader relies. This is but declaratory of the rule of pleading 'which has obtained from earliest times. However, the complainant does not object to this; has not moved to strike out, but, on the contrary, has filed a replication and gone to hearing. The only defect of title raised and argued on the hearing is this: The complainant, mortgagee of the same property, some time since foreclosed the mortgage and bought in the property' at the sheriff’s sale. It is the title thus acquired that the complainant proposes to pass to the defendants by conveyance. The defendant Reingold, whose former name was Schneider, together with her then husband, made the mortgage, which was foreclosed. Whether one or both of them had the fee is not disclosed, but Mrs. Schneider (now Reingold), if she did not have a fee, had an inchoate right of dower, which would be an outstanding interest if the foreclosure were defective and if a good and sufficient title had not passed thereby. The alleged defect is that the subpam-a acL respondendum was issued one day before the filing of the bill. This appears to be the fact. The subpoena is tested May 14th, 1917, and on the back thereof, on the same date, is a written appointment of a special deputy to serve the writ, and this under the hand and seal of the sheriff. It is returnable May 26th, 1917. The bill was filed May 15th, 19.17.

The Chancery act (Comp. Stat. p. 411 § 3) provides that no subpoena for appearance shall issue until after the bill shall have been filed. This provision is an old one and was in force when Chancellor Green wrote the opinion in Crowell v. Botsford, 16 N. J. Eq. 458. In that case the learned chancellor held that the issuing of a subpoena (except in cases to stay waste, then permitted) before the filmg of a bill is irregular, and if promptly brought to the notice of the court, the subpoena, on motion, will be set aside as illegally issued; but that such prior issuing is a mere technical irregularity, and that application to set it aside must be promptly made; that if the defendant takes any step in the cause, or lies by and suffers his adversary to proceed in the belief that his proceedings are regular, the court will not interfere to correct the technical irregularity. .

If the defendant in the foreclosure had come in promptly and moved to set the ¡orocess aside as illegally issued, the only result would have been that complainant would have been obliged to pay costs of the motion and sue out an alias subpoena.

The commencement of a suit in chancery was originally by bill praying for the issuance of subpoena, which issued a.s soon as the bill was filed. Yet in early times the practice grew up to issue subpoena, before the filing of the bill, to correct which parliament passed an act in the reign of Queen Ann that no subpoena should issue until after bill filed, except on bills for injunction or to stay waste or suits at law; but that statute has always been regarded as directory only and not mandatory, a departure from which amounted to a mere irregularity which subjected the party to costs. And it appears that solicitors, who through inattention, or otherwise, issue subpoenas and have them served before bill, filed, take care to have the bill filed before the return day. This, of course, is quite essential, otherwise the time for answering would be curtailed below the twenty days allowed after the return day when the defendant is in court, for he cannot know what to answer until he sees the bill. Now, in the foreclosure suit here- involved tire disparity between the teste of the subpoena and the elate of filing the bill probably arose through the practice formerly prevailing of solicitors mailing a bill to the clerk in chancery for filing and at the same time issuing subpoena. The clerk, in recognition of this practice, filed the bills received in the morning’s mail as of the previous day, so that the filing of a bill and the teste of subpoena might not vary. I was obliged to decide this practice of filing, bills before their actual receipt by the clerk in this office to be illegal. See Schenck v. Yard, 86 Atl. Rep. 81.

As the defendants were actually served in the foreclosure suit, and the bill was filed before the return day, the defendants had the full twenty days’ time allowed after the latter date in which to appear and answer. Instead of doing so they defaulted, and the decree made on their default is perfectly legal. The defendants lay by and permitted the complainant to proceed to decree, execution and sale without objecting, and he is presumed to have been unaware of the technical defect in the proceedings.

The defence in the suit at bar is invalid and the complainant is entitled to a decree for spécifie performance of the contract to convey, as his title is unaffected by the technical irregularity set up by the defendants.

Decree for complainant accordingly.


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    In the matter of George E. Jenkinson, Jr., a solicitor in chancery, charged with contempt of court.
    [Decided July 12th, 1922.]
    1. It is a contempt of court for anyone to threaten or treat injuriously a ministerial officer or other person who is under the immediate protection of a court of justice.
    2. It is a direct criminal contempt in facie curial foi' a solicitor to insult the clerk in chancery' when addressed by him in a communication emanating from the chancellor.
    On order to show cause why George E. Jenkinson, Jr., a solicitor in chancery, should not be adjudged in contempt of the power, authority and dignity of the court of chancery of New Jersey, and why he should not be punished therefor.

      Mr. William J. Baches, assigned to prosecute, for the motion.

      Mr. George B. -Jenkinson, Jr., pro se.

   Walker, Chancellor.

It appearing to the chancellor by the affidavit of Mr. E. Milford Appelgate, chief clerk of the office of the clerk of the court of. chancery of this' state, that he, for and in the name of the clerk in chancery, and as his representative, wrote and sent to George E. Jenkinson, Jr., the solicitor of Eugenia E. Johnston and husband, mortgagors of a fund; belonging to a ward of this court, several letters concerning interest due on the mortgage which runs to the chancellor, which interest was in arrears; and in the last letter to Mr. Jenkinson, dated January 4th, 1922, he, Jenkinson, was advised that the matter had been called to the attention of the chancellor, who instructed him, Appelgate, to say that unless the interest was forthwith paid into court, he, Jenkinson, would be served with an order to show cause, and this, because Jenkinson had been notified in the course of the correspondence that Mrs. Johnston informed the clerk in chancery that he, Jenkinson, her solicitor, had received the interest; and it further appearing that shortly after the writing and mailing to Jenkinson of the last-aforesaid letter of January 4th, 1922, there was received in the mail of the clerk in chancery, addressed to him, that original letter with an endorsement on the back thereof in typewriting, signed by Jenkinson, in his own proper handwriting, in which, among other things, he said:

“I would have knocked your head off your shoulders if you had been within reach at any time since I received this letter of yours, but I suppose the fault was mine, really, because of my failure to answer when you wrote me. However, don’t you ever write me in such style again, until you are more sure of your facts.
George E. Jenkinson. Jr.”

This communication to the clerk in. chancery is a flagrant contempt of court.

The contempt with which we are here dealing is a direct criminal contempt, not a civil one which is remedial in character and for the coercion of one party for the benefit of another. Direct contempts are those usually referred to as contempts in the face of the court (in facie enrice). But this does not mean that such contempts must be committed while the judge is presiding in open session in the court room. In re Merrill, 88 N. J. Eq. 261, 275.

In re Woolley, 11 Bush (Ky.) 95, the supreme court was concerned with a contempt committed in tire use of offensive language in a petition for the rehearing of a case, which counsel addressed and sent to the judges. The court said (at p. 99) :

“Woolley’s offences were committed in the presence of the court. The petition for rehearing is n'ot a pleading, but an argument addressed to the court and. to the individual members of the court. His statement was in most respects personal to himself and was intended to be so considered. The petition was the counsel’s argument in support of the motion for a rehearing, and the counsel, and not the client, is responsible to the court for the character of the argument and for the insinuations, imputations and charges which the petition may contain. Written or printed arguments, whether in the shape of briefs or petitions for a rehearing, a.re filed in open court, are signed by counsel, and are addressed to the court just as oral arguments are addressed, and to incorporate into such arguments contemptuous, scandalous or insulting matter is to commit in open court an act constituting a contempt. * * *

“The object in citing him to appear was not to enter into an inquiry as to whether at some time or place out of court he had, by acts or words spoken, written or printed, committed a contempt of the court, but to afford him an opportunity to purge the contempt committed in court by explanation, apology or retraction, or, in case of his refusal or failure to do so, to allow him to show cause why punishment should not be inflicted.”

The Kentucky ease goes on lo show that in the case of Lechmere Charlton, 2 Myl. & Cr. 317, the lord-chancellor adjudged Charlton, who was a.barrister, in contempt, because he sent a letter to one of the masters of the court, containing matter scandalous with respect to the master, and an attempt to improperly influence him in his conduct of the matter pending before him., for which the lord-chancellor sent him to prison.

It is a contempt of court for anyone to threaten or treat injuriously a ministerial officer or other person wbn is under the immediate protection of a court of justice. See 4. Bl. Com. 124, 126.

' Now, it is perfectly obvious that a letter written to the clerk in chancery concerning a matter being administered in court and in response to a letter of the clerk reciting a direction of the chancellor to the writer of the letter, is a communication to all intents and purposes addressed to the chancellor himself, whose official representative and ministerial officer the clerk is. When the clerk wrote Jenlrinson that the chancellor had instructed him to say to him, Jenlrinson, that unless the interest was paid forthwith into court, he, Jenlrinson, would be served with an order to show cause, his reply to the clerk that he would have knocked his head off his shoulders if he had been within reach at any time since he, Jenlrinson, received the letter, was intended to be, and in fact was, exhibited to the chancellor, as a communication in the premises.

On the return, of the order to show cause the respondent admitted the facts above set out (except that he claimed not to have received one of the letters mailed him by the clerk prior to that of January 4th, 1922) and said that he did not intend any contempt of court or insult to the clerk. This statement is absurd and is unavailing. The answers of a respondent charged with contempt of a court of equity do not have to be accepted as true as in courts of law. In re Merrill, supra (at p. 282). But even in courts of law the rule that answers1 must be accepted as true does not control where the matter spoken or written is of itself ’ necessarily offensive or insulting. The meaning and intent of a respondent must be judged by a fair interpretation of the language he used; and he cannot escape responsibility by claiming that his words did not mean what any reader must understand them to mean. Ibid: (at p. 283).

The only case called to my attention in which a somewhat similar situation is said to have been involved is Watson v. People, 11 Col. 4, in which an attorney, in a quarrel with the clerk of a court over the entry of a judgment, when the court was not in session, and where the words did not reflect upon the court aud were spoken out of its presence, was held not guilty of contempt of court But that case is clearly to be distinguished from the one at bar. The court in that case observed (at p. 5) that the subject of the quarrel did not extend to or include any act of the court or judge. In the case at bar the chancellor sent word to the respondent through the clerk, who, respondent, replied that if the clerk had been within reach when lie, respondent, got the letter he "would have knocked his, the clerk’s, head off. The clerk was the representative of the court for whom he was acting ministerially. If such a state of facts as are here present had been before the Colorado court, I make noi doubt that its decision would have been a finding of guilty against the offending attorney.

In the old days of the duello the parties who gave and accepted in writing challenges to mortal combat addressed each other in scrupulously polite language. In the Romance of Duelling (Steinmetz, London, 1868, pp. 94, 95) it is stated that the accredited mode of duelling was to conduct the affair with the greatest possible politeness, expressing the challenge clearly, avoiding all strong language; and a fonn of letter is given, commencing “Sir” and ending “Your obedient servant.” Tins is an illustration that there is neither justification nor excuse for the use of intemperate and unconventional language in written communications between gentlemen. And attorneys and solicitors are in duty bound to deport themselves gentlemanly in their conduct toward judges and the officers of courts of justice.

The respondent is guilty of contempt of this court, and the fact that he did not have his client’s money for the purpose of paying interest on her mortgage, is no mitigation of his offence. He could as easily, and would much better, have addressed the court through the clerk in language polite and dignified, instead of indulging in billingsgate.

The respondent will be directed to appear on a day to be fixed to receive the judgment of the court. '