source: Caselaw Access Project

license: Public Domain

text:
    The Bernardsville Methodist Episcopal Church, a corporation, v. Robert Seney et al.
    [Decided November 22d, 1915.]
    1. G. I. S. and wife conveyed to the B. M. E. church certain lands in trust as a place of residence for the Methodist preachers who might from time to time be stationed in Bernardsville, and also conveyed' to it certain other lands in trust for the purpose of a church. The church alleges that these conveyances were made for valuable consideration, and prays that the trusts be declared void and be decreed to be terminated for that reason. Quaire: Can a conveyance for valuable consideration, adequate or inadequate, with a trust for charitable uses imposed upon it, be defeated by the trustee upon the ground that it is void because not founded upon a gift.
    2. The defendants are the heirs-at-law of G. I. S. and his wife, both deceased, and the general and Newark annual conferences of the M. E. church, alleged to be all the persons who may have any interest in the subject-matter of the suit, or who may have any right of reversion or remainder in the premises after the termination of the particular estate. These defendants answered admitting the allegations of the bill and consenting that the relief prayed be granted to the complainant.—Held, that the cestuis que trtist are the present and future pastors, as to the parsonage, and the present and future congregations, as to the church, who are not parties, and can only be protected by the presence of the attorney-general intervening on behalf of the public.
    3. Amendment will be allowed to charge the attorney-general as defendant, and, after answer by him, the case may be brought on for further hearing, at which the facts relied upon by the complainant may be proved as the admissions made by the present defendants in their answers cannot bind the cesttds que trust.

    On final hearing on bill and answers.

      Mr. Arthur A. Palmer, for the complainant

      Mr. Frank B. Allen, for the defendants.
   Walker, Chancellor.

The bill in this case prays that two certain trusts or uses created, imposed and made a burden on the lands and premises therein described, may be terminated, annulled and decreed for nothing holden.

It alleges that on January 25th, 1882, George I. Seney and wife conveyed to the trustees of the Methodist Episcopal Church of Bernardsville certain land in trust as a place of residence for the use and occupancy of the preachers of the Methodist Episcopal Church in the United States of America, who might from time to time be stationed in the village of Bernardsville, subject to the usage and discipline of that church as from time to time authorized and declared by the general conference and by the annual conference of the church within whose bounds the premises are situate. Mr. Seney died, and on March 29th, 1901, his widow, who was the devisee of all his real estate, conveyed the premises to the complainant by deed of quitclaim for the purpose, as alleged, of releasing it from the effects of the trust created by the deed first mentioned. On November 16th, 1901, the sole survivor of the trustees named in that deed, conveyed the same premises to the complainant. The object of these conveyances, it is alleged, was to vest a fee in the complainant, but whether they passed anything to the grantee it is unnecessary to decide.

The land and dwelling-house thereon was used as a parsonage from the time of the making of the deed of trust until about April 1st, 1901, when another and better tract of land was acquired and a dwelling-house erected by the church for a parsonage.

By decree of this court dated July 30th, 1902 (Bernardsville Methodist Episcopal Church v. Seney et al., docket 25, page 67), it was recited that this change would be to the great benefit and advantage of such of the preachers of the Methodist Episcopal Church in the United States, as might from time to time be stationed in the village of Bernardsville, to have the use of the last-mentioned premises and dwelling-house as a parsonage, instead of the first-named premises and dwelling-house, and it was ordered and adjudged that the church should have power and authority to sell and convey the first-mentioned premises free, clear and discharged of and from the trust created in the first-mentioned deed; and that the last-named premises, together with the dwelling-house erected thereon, should be held in trust, kept and maintained by the church as a place of residence for the use and occupation of the preachers mentioned, and that the trust created in the. first-mentioned deed should be and was thereby transferred from the premises described therein to the other premises, but that before the transfer should take effect the church should execute and record in the office of the clerk of the county of Somerset a declaration of trust in respect to the latter premises of the same purport and effect as that set out in the first-mentioned deed. Such declaration was duly made and recorded. As to authority for this proceeding, see Fair v. First Methodist Episcopal Church, 57 N. J. Eq. 496.

The present bill is filed by the church as a body politic, and states that it is authorized by the general conference and the Newark annual conference of the Methodist Episcopal Church of which it is a member, and by the quarterly conference of the Bernardsville Methodist Episcopal Church and by its members and congregation, to bring this suit, and that the general, Newark annual and quarterly conferences of the church request the relief prayed for, and that the general and Newark annual conferences have complete and absolute authority and' control over the placing and maintaining of preachers in the parsonage.

The bill also alleges that the complainant has built a new stone church at a cost of about $35,000 on lands also conveyed by Seney and wife to the complainant in trust for the purpose of a church by the same sort of consideration as existed in the conveyance of the parsonage premises, and that the new chiirch has been paid for, except to the extent of $6,000, and that it has endeavored to raise a loan to pay off that indebtedness, but has been unable to do so because of the trust or use which encumbers the parsonage and church properties.

Then follows an allegation that the trust or use, created in the deed by Seney and wife, imposed and made a burden on the. parsonage premises conveyed (which was transferred to the other premises as above mentioned),

“improvidently, without warrant of law, contrary to equity and good conscience, and without a consideration and power sufficient to support said trust or use, and was made and suffered under a mistake and misapprehension of the facts and their legal effect,”

and there is a similar allegation as to the church premises. Then follows the prayer for the annulment of the trusts.

The defendants are the heirs-at-law of George I. Seney and Phoebe A. Seney, his wife, both deceased, and the general and Newark annual conferences of the Methodist Episcopal Church, who are alleged to be all of the persons who may have any interest in the subject-matter of the suit, or who may have any right of reversion or remainder in the premises mentioned after the termination of the particular estate therein.

The defendants have all filed answers admitting the allegations of the bill and consenting that the relief "prayed for be granted to the complainant.

The case has been submitted on the pleadings mentioned, and a decree is asked that the complainant is the owner in fee of the present parsonage property, subject to the provisions of the trust or use above mentioned; further, that.the complainant is the only party interested in the legal title to the premises; that the general conference, the trustees of, and the Newark annual conference of the Methodist Episcopal Church, defendants, are all the persons or corporations who are the cesiuis que trust and all the persons and corporations for whose benefit the trust has been made; and that the heirs-at-law of George I. Seney and wife, both deceased, defendants, are all the persons who have or may have any interest in the subject-matter, and who have or may have any right of reversion or remainder or any possibility of reverter or any other interest in the premises; that the trusts mentioned were created improvidently and without warrant of law, &c., and that they be terminated, annulled and for nothing holden.

In the first place, the complainant has mistaken the persons who are cesiuis que trust in this case. It alleges them to be the general conference, the trustees of, and the Newark annual conference of the Methodist Episcopal Church. On the contrary, the cestuis que trust are the present pastor of the Bernardsville Methodist Episcopal Church and his successors in the benefice as to the parsonage, and the congregation, present and future, as to the church. The trustee under each trust is the church corporation last named, and, maybe, the other corporations named which exercise control over it.

Cestuis que trust are those for whose benefit others are seized of property. Larkin v. Wikoff, 75 N. J. Eq. 462, 474 (affirmed on this question, Same Case, 77 N. J. Eq. 589; reversed as to costs and counsel fees only, 79 N. J. Eq. 809). In that case it was held that the pastors who conducted services at certain Christian churches were not the cestuis que trust under the deed, the trust having been created for the benefit of certain people, with power given the trustees to discontinue religious services and sell the church property whenever it should seem expedient to do.so. There the pastors had no right to have the services continued after the trustees had determined to discontinue them. Here there is no power in the trustee to discontinue the charitable uses.

The trusts involved in this case are legal charities and, therefore, lawful uses and trusts as to which the rule against perpetuities does not apply. See Mills v. Davison (Court of Errors and Appeals), 54 N. J. Eq. 659, as to the church property; and Trustees, &c., v. Beatty, 39 N. J. Eq. 452 (affirmed for the reasons given by the chancellor, Beatty v. Trustees, &c., 41 N. J. Eq. 563), as to provision for the pastors.

The complainant takes the ground that the premises in question were not gifts upon which the donor has impressed a trust which cannot be terminated, but that both the parsonage and church premises were purchased for valuable consideration, and that, therefore, the premises acquired are incapable of being fettered by interminable trusts.

Where property is given to trustees for a charitable use the trust is a creature of the donor and cannot be defeated by the donee, but where parties by means of their own devising attempt to place their own property beyond the reach of creditors, the claims of the latter are not thereby defeated. See Magie v. German, &c., Church, 13 N. J. Eq. 77.

In Holmes v. Trustees, &c., 58 N. J. Eq. 327, Vice-Chancellor Emery (at p. 3®9) observed that the rights of certain persons as contributors to a fund, the rest of which was supplied by another person, who conveyed the land in trust, without consideration therefor, to a church society, were extinguished when the church applied the contributions for the purchase; that the church, using the fund so contributed, became, as to its grantor, a purchaser and could not- be made a mere donee for charitable uses, even if the grantor be considered to be a donee to the extent of his contribution to the purchase fund. The complainant argues from this that whenever lands are purchased for a valuable consideration, adequate or inadequate, any trust containing a limitation upon the right of alienation may be avoided. In the case mentioned, however, the property was purchased by funds subscribed for the purpose, including the contribution by the grantor, and the vice-chancellor held that the relation of donor and donee for charitable uses was not intended and agreed upon by the parties to the deed.

The sharp question now before me is as to whether a conveyance for a valuable consideration, adequate or inadequate, with a trust for charitable uses imposed upon it, may be defeated by the trustee upon the ground that it is void because not founded upon a gift. This question is not decided in any of the cases to which I have been referred by counsel. Its decision in favor of the complainant would be against the cestuis que trust, namely, the pastors of the Bernardsville Methodist Episcopal Church, present and future, and the present and future congregations, who are not before the court, and who would, therefore, not be bound by the decree. In this posture of the case I will permit an amendment to the bill charging the attom^r-general as a defendant, as was done in Larkin v. Wikoff, supra, who, when present, will represent the public, that is, such members of the public as are interested in the trusts, and for all practicable purposes will represent the present and future pastors and congregations of the church.

After amendment made and answer by the attorney-general, the cause may be brought on for further hearing. At this hearing the facts relied upon by the complainant may be proved, as the admissions made by the present defendants in their answers cannot bind the cestuis que trust.


author: Walker, Chancellor.

text:
    Hattie Oxley Stengel v. George F. Stengel.
    [Decided November 26th, 1915.]
    1. A commission to take the depositions of foreign witnesses de bene esse is a statutory proceeding substituted for letters rogatory.
    2. Letters rogatory request a foreign court to take the depositions of witnesses residing within its jurisdiction and transmit them to the court making the request. Compliance rests entirely on comity.
    3. Letters rogatory may only be issued where testimony cannot otherwise be obtained in a foreign jurisdiction; but in order to obtain them it must be shown that a commission is not adequate, preferably by the issuance of such commission and its return, showing the impossibility, after proper efforts, of obtaining the desired testimony thereunder.
    4. The different methods of taking depositions of foreign witnesses de bene esse pointed out.
    On application for a commission and letters rogatory to take depositions of foreign witnesses de lene esse.

      Mr. Maximilian M. Stallman, for the petitioner.

      Messrs. IAntott, Kahrs & Young, for the defendant.
   Walker, Chancellor.

In this case both parties desire to take the depositions de lene esse of witnesses residing in the city of Philadelphia, in the State of Pennsylvania. Our Evidence act provides, inter alia (Oomp. Stat. p. 8£'31 § 36), that if a material witness in any action of a civil nature, pending in any of the courts of this state resides out of this state, it shall be lawful for the court, on proof to its satisfaction, and on such terms as the court may direct, to issue under the seal of the court, a commission to such person as the court may think fit, authorizing such person to examine de lene esse the witness on oath or affirmation. Then follows sections making provision that the names of the witnesses to be examined shall be inserted in the commission, and that interrogatories shall be drawn and signed by the parties or counsel to be approved by the court and annexed to the commission; that application for such commission shall be made on notice, with service of a copy of interrogatories intended to be annexed; that the commission may be issued by consent of the parties, with interrogatories approved. And in section 45 it is provided that instead of taking testimony by commission, the same may be taken before a commissioner especially appointed by the court in which the action is pending, or before certain officers named, provided that notice of the time and place of such examination, and the names of the witnesses to be examined, shall be given to the adverse party, his attorney or’ solicitor, that he may be present and put interrogatories if he shall see fit, which notice shall allow certain time for attendance after service of the notice.

The parties to this suit seek to take the testimony da bene esse by consent, and have sent a stipulation to the cleric's office naming the witnesses and a commissioner at Philadelphia, Pennsylvania. The stipulation provides that the testimony be taken “upon a commission and letters rogatory issued out of this court.” Annexed to the stipulation are letters rogatory directed to the judges of the court of common pleas of the city and county of Philadelphia, in the usual form of such documents, requesting that court by its proper and usual process to cause such witness or witnesses as shall be named or pointed out by the parties to come before that court or some competent person by it for that purpose to be appointed and authorized, at a precise time and place, and there to answer on their oaths or affirmations as they may be examined on behalf of such parties, &c., offering to do the same for that court when required. Also annexed to the stipulation is a form of commission addressed to the commissioner agreed upon by the parties, reciting that this court has appointed him and giving him full power and authority to examine certain witnesses named, &e. No order has been presented to the court for the issuance either of letters rogatory or a commission or for the appointment of a commissioner to take tlie depositions. Nor are any interrogatories annexed to the commission or letters.

The request for the issuance of both the letters and commission must be denied.

One way to take depositions cle bene esse out of the state without an appointment of a commissioner is before certain officers named, upon notice as required by section 45 of the Evidence act, supra. If depositions are desired to be taken under that section on notice before anyone save the officers named it must be before a commissioner appointed by the court. Another way to take such depositions cle bene esse out of the state is to stipulate that they may be so taken without an order of the court, such stipulation to state the name and residence of the witness whose testimony is to be taken, the time and place when and where, and the officer who it would have been lawful for the court to designate in a commission issued upon application, as provided for in section 57 of the Evidence act.

A commission to take the depositions of foreign witnesses de bene esse is a statutory proceeding substituted for letters rogatory. Our statute makes no mention of such letters.

What letters rogatory and their characteristic are, is stated in 18 Gyc. 892, as follows:

“Letters rogatory are letters or a formal communication containing a request by a court, in which an action is pending, of a foreign court or tribunal that the testimony of a witness residing within its jurisdiction may be formally taken under its direction and transmitted to the court making the request. At an early period this process was in use between the states of the Union. The procurement of depositions in this manner rests entirely on comity. This mode of obtaining testimony should be resorted to only where a commission cannot be executed or would be inadequate, and not where it would be objectionable because removing the investigation from the control of the domestic court, and from the operation of the rules of evidence prevailing therein.”

Another incident to taking depositions upon • commission or letters rogatory is, that interrogatories must be annexed and approved by the court. There are no interrogatories annexed to the papers before me.

The court to which letters rogatory were addressed in Doubt v. Pittsburg, &c., Railway Co., 19 Pa. Co. Ct. 178, declined to take the depositions of the witnesses therein named because the letters were not accompanied by interrogatories, and on the contrary, contained a request that the depositions be taken viva voce.

Depositions de bene esse out of the state can only be obtained, without written interrogatories submitted, by giving notice under section 45 or by stipulation under section 57, supra.

As to commissions and the proceedings to obtain their issuance and also the forms of commissions and letters rogatory, see Dick. Ch. Prec. (rev. ed.), US—166.

By section 58 of our Evidence act, in case a commission be issued out of any court of the United States or any state or territory, 'directed to any person in this state authorizing him to examine or take the depositions of witnesses named in such commission, and the persons to be examined shall refuse to attend and give testimon3r, any justice of the supreme court of this state may make an order awarding process of subpoena out of that court for such witnesses to appear and testify before such commissioner. Doubtless Penns3dvania has a similar statute, and no doubt the depositions of the witnesses desired to be examined by the parties may thus be compelled under a commission, without recourse to letters rogatory. But if the commission cannot be executed, then letters rogatoiy may be applied for.

It would therefore seem to bo unnecessary for this court, at least at this time, to request the court of common pleas of Philadelphia, Pennsylvania, to compel the giving of testimony in this case, as it can doubtless be obtained by the ordinary methods employed under a commission.

An order will be made for the appointment of a commissioner to take depositions de bene esse under a commission in this case, on the stipulation already made, if requested, provided interrogatories are submitted for the approval of the court, according to the statute and established practice.

In Gross v. Palmer, 105 Fed. Rep. 833, it was held that letters rogatory may be issued where testimony cannot otherwise be obtained in a foreign jurisdiction, but it must lie shown that a commission is not adequate, preferably by the issuance of such commission and its return, showing .the impossibility, after proper efforts, of obtaining the desired testimony thereunder.


text:
    Alfred W. Booth & Brother, a corporation, v. Mayor and Common Council of Bayonne et al.
    [Decided January 31st, 1914.]
    1. This court is without jurisdiction to maintain a delinquent taxpayer’s suit ■ to restrain a tax collector from making sale of the complainant’s real estate under the General Tax act of 1908, and subsequent related acts. Comp. Stat. p. 5015.

    2. In this state taxes become liens on property solely from express legislation, and can be -collected only in the manner provided by statute.
    8. By the express language of the charter, of the city of Bayonne (P. L. 1812 p. 686), the taxes assessed on the complainant’s personal property is made a lien on its real estate, and it appearing that the defendant tax collector is proceeding to enforce collection thereof as well as the arrearages due upon the complainant’s real estate strictly in the manner provided by the charter, the complainant is not entitled to any relief against the defendant on that ground alone, even if the subject-matter of the suit is within the jurisdiction of this court.
    4. But the Revised Tax act of 1903 entitled “An act for the assessment and collection of taxes” (Comp. Stat. p. 5015), supersedes the Bayonne charter upon this subject, because it contains a complete scheme of local taxation for the whole state, and must be followed as far as its provisions extend.
    5. The taxpayer’s remedy in case of an irregularity consisting of a tax collector’s blending together in his notice of sale, taxes on the taxpayer’s real and personal property, is by writ of certiorari out of the supreme court, and not by injunction out of the court of chancery.
    This matter was referred to James Buchanan, as advisory master, who Hied, the following conclusions:
    On bill taken pro cortfesso and order for proofs, &c.

      Mr. Randolph •PerTcins, for the complainant.
    This is a suit by a delinquent taxpayer to restrain a city tax collector from making sale 'of the- complainant’s real estate under the General Tax act of 1903, with supplements and subsequent related acts. Comp. Stat. p. 5075.

    The complainant is a corporation seized of lot 1, block 444, in the Fourth ward, on Orient street, in, Jersey City, upon which the taxes assessed in 1909 remain unpaid, and being so unpaid, the defendant city collector proceeded to enforce collection under the provisions of the general act relating to taxes and assessments hereinbefore recited, and in the advertisement of sale stated the amount of arrearages of tax, interest and expenses to be $1,266.41, which sum includes taxes assessed for the same year upon $50,000 worth of personal property of the complainant.
    The sale was advertised to take place on February 26th, 1913, and on February 13th of that year tire complainant made a legal tender to the said defendant collector of $55, being the full amount due for the tax on said real estate for 1909, together with all interest and cost of advertisement up to date, but the collector refused to accept the same unless at the same time the taxes on the personal property of the complainant of the assessed valuation of $50,000 were also paid; and thereupon on the next dajr, February 14th, 1913, this bill was filed to restrain the sale thus advertised.
    In this state taxes become liens on property solely from express legislation, and can be collected only in the manner provided by statute. Linn v. O’Neil {1892), 55 N. J. Law 58.

    The charter of Bayonne {P. L. 1872 p. 686) is as follows upon this subject:
    “49. And be it enacted, that personal tames and tames upon goods and chattels which shall hereafter be levied or assessed in the city of Bayonne against any person or persons, shall he and remain a Ken on all the lands and real estate of such person or persons within this said city; and all taxes and assessments which shall hereafter be levied, assessed or made upon any lands, tenements or real estate situated in the city of Bayonne, shall be and remain a lien thereon until paid, * * * and that if the
    full amount of any such tax or assessment shall not be paid and satisfied within the ■ time limited and appointed by the said board for the payment thereof, it shall be and may be lawful to cause such lands, tenements or real estate to be sold by public auction for the shortest term for which any person will agree to taire the same and pay such tax or assessment, or the balance thereof remaining unpaid, with the interest and penalty thereon, and all costs, charges and expenses,” &c.

      It tiras appears from the express language of the city charter that the taxes assessed on the personal property of the complainant is made a lien on its real estate, and that the defendant collector is proceeding to enforce collection thereof as well as of the arrearages due upon the complainant’s real estate strictly in the manner provided by the charter, so that the complainant is not entitled to any relief against the defendant on that ground alone, even if the subject-matter of the suit is within the jurisdiction of this court.
    But, assuming in the next place, that the Revised Tax act of 1903 entitled “An act for the assessment and collection of taxes” {Comp. Stat. p. 5075), supersedes this section of the Bayonne charter, because it contains a complete scheme of local taxation for the whole state and must be followed as far as its provisions extend, as stated by Judge Black in his work “New Jersey Law of Taxation" (edition of 1906, page 192), it is important to note the pertinent provisions of the Revised Tax act on this same subject.
    The forty-second section of the Revised Tax act {Gomp. Stat. p. 5125), with respect to delinquency and the form of the tax bill, provides that taxpayers who do not pay on or before the 20th day of December, “will be proceeded against as delinquent;” and further provides, that the notice to be sent by the tax collector to the taxpayers
    “shall be written or printed and may be in the form of a tax bill,- and shall set forth the number of acres or. lots assessed to the taxpayer, the valuation of his real and of his personal property, the rate per dollar and the total tax,” &e.
    The forty-third section of the Revised Tax act {Gomp. Stat. p. 5126) provides, with respect to the non-payment of personal taxes, that
    "it shall be the duty of the collector * * * forthwith after the twentieth day of December to enforce the payment of all taxes by distress and sale of any of the goods and chattels of the delinquent in the county, * * * if goods and chattels of the delinquent cannot be found, or not sufficient to make all the money required to pay taxes on personal property and poll tax and dog tax, then it shall be the duty of the collector * * * to take the body of the delinquent,” &c.

      And the forty-ninth section of the Eevised Tax act (Comp. Stat. p. 5129) provides that
    “all unpaid taxes on real estate, with interest, penalties and costs of collection, shall be, on and after the twentieth day of December next after the assessment, a first lien on the land on which they are assessed,” &c.
    And the fifty-first section of the Eevised Tax act (Comp. Slab, p. 51S2) provides, with respect to'notice of tax sales,
    “that the collector shall enforce the tax lien by selling the land or any part thereof sufficient for the purpose; he shall give public notice * * * stating the names of delinquents and the land to be sold * * * and the amount of the delinquent taxes thereon.”

    The sixty-sixtli section of the Eevised Tax act repeals “all acts, general add special, inconsistent with the provisions of this act,” but the Eevised Tax act does not contain any provision making taxes on personal property a lien on the real estate.
    Tn pursuance of the provisions of the Eevised Tax act the defendant tax collector sent to the complainant a tax bill for the year 1909, in conformity with the requirements of the forty-second section of the statute, blending together the taxes on the real and personal property of the complainant (and there is nothing in that section prohibiting such blending in the tax bill); and the tax collector purporting to conform to the fifty-first section of this general act gave public notice of sale, also blending together in such notice of sale the taxes on the complainant’s real and personal property, instead of separating the saíne and confining such sale, to the amount assessed in respect to the complainant’s land, thus failing to give effect, to the word “thereon” in this last-mentioned section of the statute which confines the sale of land to the payment of “the delinquent taxes thereon.”
    Tt thus appears, from an examination. of the Eevised tax act, and the acts of the tax collector in pursuance thereof, that the real complaint of the complainant is that of a threatened sale for an irregularity of the tax collector in blending together in his notice of sale taxes on the real and personal property of the complainant, as described in the sixtieth section of the general act (Comp. Sta-t. p. 5188), relative to the setting aside of sales of land for specified irregularities, which is in these words:
    “No sale of land for delinquent taxes hereinbefore or hereafter made shall be set aside by reason of the blending together taxes on real and personal property, but the sale shall be sustained as to the real property subject to the right to redeem upon payment of the amount of the lien thereon.”
    And this suit has been instituted to test the question whether a lien can be established upon the complainant’s land for taxes assessed against its personal property on account of this irregularity of the tax collector.
    With respect to the taxpayer’s remedy-in case of an irregularity of the kind now under notice, and in what court it must be sought, Mr. Black, in his work above cited, says:
    “Chief-Justice Beasley, speaking for the court of errors and appeals, in Mayor, dec., of Jersey City v. Lembeck (1879), 81 N. J. Eq. 255, 267, said : Neither will it be gainsaid that it is, and always has been, one of the prerogatives of the supreme court of this state to supervise the proceedings and to correct the errors of all inferior tribunals, and of persons and parties exercising particular legal functions; the practice is so fixed, and the adjudications so clear upon the point, that it would be a mere waste of time to do more than state it as an admission. And the principal mode in which this power is put forth is by the effect and comprehensive writ of certiorari/ ” See, also, cases cited in Black, supra, § 282 note (15).

    Judge Black, in his work above cited, section 295, says (and his statement is sustained by numerous cases cited in the footnotes) :
    “Where the tax or assessment is merely irregular, as distinguished from being void, a bill in equity will not lie. The general principle is clear and well established, that before an injunction will issue from the court of chancery to restrain the collection of taxes, the right to such injunction must be based strictly upon some peculiar ground of equity jurisdiction, the case must present some special circumstances attending the injury threatened, before the court will allow such injunction 'to issue. The reason underlying this principle is that courts interfere reluctantly with the collection of public revenues on the ground of public policy. The United States supreme court has said in relation to state taxes, that neither illegality nor irregularity in the proceedings, nor error or excess in the valuation, nor the hardship or injustice of the law, provided it is constitutional, nor any grievance which can be remedied by a suit at law, either before or at the payment of the taxes will authorize an injunction against'its payment.”
    And before the enactment of the General Tax act this court decided, in Jewell v. West Orange (1883), 36 N. J. Eq. 1¡.03, that no ground of equity jurisdiction existed because the sale was made for taxes on the land sold, blended with taxes on personalty.
    The want of jurisdiction in this class of cases was recognized and declared by Vice-Chancellor Stevenson, in the recent case of Roe v. Mayor, x&c., of Jersey Oiiy (1912), 80 N. J. Eq. 35, a suit in which the bill prayed the court in the exercise of its general jurisdiction to enjoin the collection of taxes, &e.
    There, on the opening of the hearing, the vice-chancellor called the attention of counsel to the question whether any case was presented by the bill for equitable cognizance, and, in commenting on the state of the pleadings, said, amongst other things (at p. 37) : “II a determination and a decree in form will be in
    accordance with the methods pursued by courts of equity, then at the end of the trial the court will not ordinarily, of its own motion, turn the parties away and render all their litigation abortive, but the court can always, for its own protection, for the maintenance of our dual system, whenever necessary to keep sharply distinguished the functions of the law courts and equity courts, of its own motion,' decline to determine a purely legal controversy, simply because the parties have seen fit to endeavor to impose that duty upon the court.
    “This is the. sort of a case, in my judgment, where a court of equity should be very slow to intervene—very slow to exercise jurisdiction which belongs to a court of law, merely because the parties have not made objection. This bill seeks to have the court of chancery interfere with the collection of taxes in the city of Jersey City. Courts of equity intervene with great reluctance—all courts do, in fact—with the collection of public revenues. * * * Now, when you come to the case that is presented by the bill, if there is any case, it is purely one of legal cognizance. The industrious and astute counsel for complainant had his attention called particularly to the point, ‘What feature of this ease gives equitable cognizance ?’ and no answer is presentecl to the question. All the defences pointed out are legal defences. * * * A court of equity will not do that sort of work, and will not do it even though the parties seek to impose that duty upon it.”
    And the vice-chancellor there referred to Jersey City v. Lemtech, supra, taking occasion to say: “Of course, counsel are entirely familiar with the very great effect that decision has had upon the practice under that statute (i. e., ‘An act to quiet titles’) in this court.”
    And the vice-chancellor referred to Goochoin v. Millville (1908), 75 N. J. Eg. 270, which is also a court of errors and appeals decision reiterating the doctrine declared in Jersey Oily v. Lembech, supra.

    In Goodwin v. Millville, supra, it was sought to justify the interference of the court of equity upon the ground of the prevention of a multiplicity of suits, but the court of errors and appeals repudiated that ground, sajdng: “The bill appears to have been filed by the complainant in his own behalf only, and there is no indication that any other person is threatening suit.” See, also, Berdan v. Passaic, an unreported case decided August 30th, 1913.
    A concrete example of the actual exercise of the superintending and correcting power of the supreme court in matters of taxation, in “blending” cases, is afforded by the ease of Linn v. O’Neil, supra, where that court awarded a writ of mandamus to compel a tax collector to accept unpaid taxes assessed upon real estate, with interest, and where the collector had refused to accept the same on the ground that the taxes assessed upon the personal property of the taxpayer were a lien upon the land there in question; another such example is the case of Llasbrouch Heights Go. v. Jjodi (1901), 66 N. J. Law 102, where two tracts of land were separately assessed, one of three hundred acres on which the tax levied was $33.80, and the other a tract of fifty acres, on which the tax imposed was $4.93, and the two sums were added together and both properties were sold for the two sums; and there it was held on certioram to set aside the sale for taxes that where two separate tracts of land are separately assessed for taxes, each tract must be sold by itself for the unpaid tax on -it, so that the person entitled to redeem after the sale may exercise his right to do so without paying the sum paid at the tax sale for both properties.
    Of course, it is to be noted, that in the latter case the proceedings reviewed by certiorari had been perfected by a- tax sale, which is necessary before that writ will issue. East Orange v. Hussey, 70 N. J. Law &4A
    The bill should be dismissed for want of jurisdiction.
   Walker, Chancellor.

A decree will be made in conformity with the advice contained in the opinion of Advisory Master Buchanan, which is hereby adopted as the opinion of the court.


text:
    In the matter of the alleged lunacy of John Edward Foran.
    [Decided April 29th, 1915.]
    The proceeding's under the supplement to the general act relating to idiots, lunatics and drunkards should be in conformity with the rules and practice already established, so far as the same may be applicable thereto.
    This matter was referred to James Buchanan, as advisory master, who filed the following conclusions:
    The brother of an alleged lunatic presents this petition to the chancellor under the supplement approved March 3d, 1915, and which took effect immediately (P. L. 1915 ¶. •57), stating, amongst other things, that the alleged lunatic is possessed of personal property consisting of about $-1,000, deposited to his credit with a trust company, and praying the chancellor to ascertain the truth of the allegations of the petition, and to appoint a guardian of the alleged lunatic.
    By the second section of this supplement the chancellor is given authority to inquire into and determine the lunacy or insanity of the alleged lunatic, and for that purpose to malee any and all necessary orders, references and decrees therein without the intervention of an inquisition or commission of lunacy by a l"m7-
    Under the original statute relating to idiots, lunatics and drunkards prior to the adoption of this supplement, the chancellor from time to time had promulgated rules, and had established a practice to be pursued,- regulating the procedure in cases like the present (rules 172—178), and in the absence of an express rule on the subject, the proceedings under this supplement shordd be in conformity with such rules and practice, so far as the same may be applicable thereto.
    The petition, amongst other things, should state the name and residence of the person proposed as guardian, the relationship, if any, which he bears to the alleged lunatic and the security proposed to be given, and should be supported by such affidavits as are pointed out in Dick. Oh. Prec. 6JfO, note (a). ?
    The order of reference should be to a special master, and should conform to the directions given to commissioners contained in the ordinary form of a commission to inquire of lunacy (Dick. Oh. Prec. , and should also require the special master to ascertain the value of the personal property of the alleged lunatic, and should also require the special master to ascertain and report whether the person proposed, as a guardian is a suitable and proper person for that purpose, the sufficiency of the sureties offered by the guardian, and whether each is worth double the value of the alleged lunatic’s personal property • over and above all debts, or whether the security offered is such as is permitted by law and should be approved by the chancellor, and what should be the penalty of the guardian’s bond to be given to the ordinaiy.
    The petition presented in this matter should be amended so as to conform to the rules above set forth.
   Walker, Chancellor.

An order will be made in conformity with the advice contained in the conclusions of Advisory Master Buchanan, which are hereby adopted as the opinion of the court.


author: Stevens, V. C.

text:
    Public Service Railway Company et al. v. The Board of Chosen Freeholders of Hudson and Essex Counties.
    [Decided December 1st, 1915.]
    1. P. L. 1906 p. 57, providing that it shall be lawful for two or more counties in which a plank road or bridge of a company whose charter has expired lies to jointly rebuild, reconstruct, change the grade of, improve, and widen such road, and agree as to the proportion of the total expense to be borne by each, and that it shall be lawful also for the boards of chosen freeholders to agree with any street railway company using such road as to the share of the expense to be borne by it toward such improvement, and P. L. 1910 p. 1/00, providing that if a street railway or traction company shall change the location of its tracks at the request of the board or boards of chosen freeholders charged with the maintenance of the street, the company shall have the right to maintain and operate in the new location for as long a period as it had the right to do in the former location, do not authorize the boards of chosen freeholders of two counties in which a street railroad operates over a plank road acquired by the counties, to force the company against its will to change the location of its tracks, which are not dangerous or inconvenient, as the highway is, simply because the boards wish to reconstruct it, since the first act contemplates an agreement and the latter a-request.
    2. The section of the Freeholders act authorizing the boards of county freeholders to ordain, establish, and put in execution such by-laws, ordinances and regulations as shall seem necessary and convenient for the government of their respective corporations, does not authorize the boards to compel such a change in the location of the tracks, the section relating only to the internal regulation of the boards and not to their control of other persons or bodies.
    S. The Traction act (P. L. 1893 p. 302), providing in section 6 that after description of the route of a street railroad is filed in the office of the secretary of state the company may apply for a location of its tracks to the common council or other body having control of the streets, and in section T that the location thus granted shall be deemed the true location of the tracks if an acceptance by the board of directors of the road shall be filed with the secretary of state, and in section 8, providing that any consent required to be given by a public body shall have the force and effect of a contract, does not authorize the boards of chosen freeholders to change the location of the company’s tracks, there being no provision in the Traction act authorizing the public body to vary, of its own motion, the location of tracks which it has defined.

      4. P. L. 1902 p 566, directing the boards of freeholders of two or more counties in which a plank road and bridge of a company whose charter had expired lay, to acquire, maintain and operate such road and bridge at joint expense, does not authorize such boards to change, against the will of a street railroad operating over such a plank road, the location of its tracks.

      Mr. Frank Bergen, for the complainants.

      Mr. Benjamin F. Jones and Mr. Joseph M. Noonan, for the defendants.
   Stevens, V. C.

The original object of the bill was to obtain an injunction restraining the defendants from moving the trolley tracks of complainant from the side to the middle of the plank road extending from Newark to Jersey City. Pending the application for an interlocutory writ an agreement was made that the work of improving and paving the plank roadway might proceed and that the location of the tracks might be changed, in accordance with the terms of a contract entered into between the joint boards and the contractor. The complainant agreed to remove its tracks, poles, wires and appurtenances to the middle of the highway and -to pay for the cost of the work; it being stipulated that if, upon final hearing, it should

'‘be determined that complainants are or were not required by law, or bound to change the location of or to remove its railway, either temporarily or otherwise * * * then the freeholders should bear and pay such expense as the complainants shall have reasonably incurred in making such changes and relocation.”

The work was done and tire expense is stated to have been $41,914.98.

The freeholders say that they have the right to compel complainant to change the location of its tracks at its own expense. This the complainant denies.

The Newark Plank Road Company was incorporated in 1849. P. L. 18J9 p. 10B., Its life was limited to fifty years. It ceased to exist, except for the purpose of being wound up, in 1899. Grey, Attorney-General, v. Newark Plank Road Co., 65 N. J. Law 51, 603. It was by its charter -authorized to construct a plank road not exceeding sixty feet in width and, by a supplementary act, to construct bridges over the Passaic and Hackensack rivers. In 1866 (P. L. 1860- p. 838) it was authorized to build and operate a horse railroad and, in 1870, its time for doing so was extended five years. The railroad does not appear to have been built in accordance with the requirements of these supplemental acts.

In 1892, with or without lawful authority, it began to construct a street railway with two tracks, one on each side of the planked road. In 1893, its stock was purchased by the Consolidated Traction Company, which completed the work in 1893 and 1894. The Consolidated Traction Company then leased its own property and franchises to the North Jersey Street Kail way Company, and this latter company entered upon the railway and filed a certificate and map thereof in the secretary of state’s office pursuant, as I understand, to section 5 of the Traction Companies’ acts. P. L. 1893 p. 312. In 1907, the North Jersey company and two others were consolidated into the complainant, which now operates the road.

In 1901, the plank road company itself became incorporated under the Traction act. P. L. 1901 ch. 131/.. In the same year, the legislature passed an act (P. L. 1901 p. 292) directing the board of chosen freeholders of any county in which a bridge owned b3r a plank road company, whose charter had expired was located, to acquire the same by purchase or condemnation. This act did not, -apparently,, meet the situation, for in the following year another act was passed (P. L. 1902 p. 566) directing the board of freeholders of two or more counties in which a plank road and bridge of a company whose charter had expired lay, “to acquire, maintain and operate such road and bridge at joint expense.” Under the latter act, the boards of freeholders of Essex and Hudson counties obtained from the plank road company a conveyance of its plank road; the plank road company reserving to itself “the trolley tracks and the foundations on which the same rest and the right to operate their trolley traffic on such tracks over said road and bridges.”

Under this act the power conferred was only “to acquire, maintain and operate” the plank road. But, in 1906, another act was passed (P. L. 1906 p. 57), which provided as follows:

“It shall be lawful for- such counties to jointly rebuild, reconstruct, change the grade of, improve and widen such road * * * and agree as to the proportion of the total expense thereof to be borne by each. And it shall be lawful also for such boards to agree with any street railway company using or hereafter using such road or roads as to the share of the expense thereof to be borne by it for and toward such improvement.”

No agreement as to the share of the expense of the improvement was made. On the contrary, the boards conceiving that they could, without agreement, order the work to be done, adopted resolutions directing the removal of the tracks from the sides to the middle of the roadway and proceeded to carry their resolutions into effect by making the contract already referred to. Hence this suit.

All that the act of 1906 does is to authorize the boards to agree with any street railway company.as to its share of the expense. There is no other act bearing directly upon the subject except the act of 1910 (P. L. 1910 p. lf.00) which provides that

“if a street railway or traction company shall change the location of its tracks * * * at the request of the board or boards * * * charged with the maintenance and repair of the street or highway * * * the company so changing the location of its tracks, shall have the right to maintain and operate the same in the new location for so long a period as it had the right to maintain and operate the tracks in. their former location.”

The former of these acts, therefore, contemplates an agreement, the latter a request. Neither of them gives to the freeholders the right to order a change of location against the will of the traction company. If they have the right, it must be found elsewhere.

Counsel for the boards suggest that it is contained in that section of the Freeholders’ act which authorizes them

“to ordain, establish and put in execution such by-laws, ordinances and regulations as shall seem necessary and convenient for the government of their respective corporations.”

But it is evident that this, in so many words, relates to their internal regulation, not to their control of persons or bodies extraneous to themselves.

It is not to be found among the ordinary powers of the boards,for the freeholders have never had any original jurisdiction over highways. That, for a long time, was given exclusively to the cities, towns and townships through which the roads were laid. Quite recently the freeholders have taken over the powers of county road boards, where such boards existed, but the acts directing the transfer have no application here.

No authority for their action can be found in the act to authorize the formation of traction companies. The Traction act, passed in 1893 (P. L. 1893 p. 302) provides that after a description of the route is filed in the office of the secretary of state (section 6), the company may apply for a location of its tracks. This latter application is to be made to the common council or other body having control of the streets or highways which may grant or refuse to grant the location applied for, in whole or in part, and may grant it under such lawful restrictions as the interests of the public may require; and the location thus granted, so section 7 provides, “shall be deemed and taken to be the true location of the tracks of the railway, if an acceptance thereof, in writing, by said directors shall be filed with the secretary of state within thirty days.” State, Theberath, v. Newark, 57 N. J. Law 309. Section 128 provides that any consent required to be given by any public body shall have the force and effect of a contract. Rutherford v. Hudson River Traction Co., 73 N. J. Law 227, 243. There is no provision in the Traction act authorizing the public body, after it has thus defined the location, to vary it of its own motion.

Even under the broad grant of power usually conferred upon the larger municipalities to grade, pave, regulate and control the use of their streets, it may at least be doubtful whether under the course of decision in this state, a city having once granted a location of tracks may change it at will. State, Hudson Tel. Co., v. Jersey City, 49 N. J. Law 303; Wilbur v. Trenton Passenger Railway Co., 57 N. J. Law 212; Phillipsburg Electric Co. v. Phillipsburg, 66 N. J. Law 506; Fielders v. North Jersey Street Railway Co., 68 N. J. Law 343. The grant of power to regulate and control must be read in connection with the provisions of the Traction, act. But the question is not what power do such municipalities possess, but what power do the freeholders? Not being among the ordinary powers of the freeholders, or in the Traction act, if it exists a.t all, it must be in the acts under which the plank road was acquired and held.

It can hardly be contended that the power was given by the act of 1902. That was a power to acquire^ maintain and operate a plante road, and the deed transferring the plank road expressly excepted from the grant “the trolley tracks and the foundations on which the same rest.” Under this act the boards acquired the same right to maintain and operate the road that the plank road company had.

The next act is that of 1906, which, as I have already said, authorizes the two boards to “jointly rebuild, reconstruct, change the grade of, improve and widen” the road. Here is a broader grant of power, but the draftsman of the act evidently had in mind the conveyance which, under legislative sanction, had transferred the plank road to those boards and had reserved the “tracks and foundations .* * * and the right to operate the trolley traffic;” for he adds that “it shall be lawful for such boards to agree with any street railway company * * * as to the share of the expense to be home by it for and toward the improvement.” The legislative scheme was, therefore, agreement—not the condemnation or appropriation, partial or entire, of the company’s property. And the act of 1910 which is entitled “An act concerning the relocation of the tracks of the street railway and traction companies and companies owning and operating street railways,” looks'in the same direction; for it provides for a change in the location of tracks by a traction company at the request of the- body charged with the maintenance and repair of streets. These provisions would be wholly unnecessary if the freeholders were at liberty to direct a change of location at their pleasure and without compensation made. The two acts taken together seem, very clearly, to indicate that in a case circumstanced like the present, at least, a general power to alter the location of tracks was not conferred. I do not say that the freeholders may not, in the exercise of such police powers as they possess, order switches or rails that endanger or obstruct public travel to be changed. They may be nuisances. Wilbur v. Trenton Passenger Railway Co., 57 N. J. Law 216. All that is said is that the joint boards may not order the removal of the company’s tracks from the place where they had, by contract, a right to be, and where they were neither dangerous nor inconvenient, as the highway then was, to another location, simply because the boards desired to reconstruct it, and because they thought that the new location would be a better one, in view of the new situation created by themselves. In so far as they appropriated the old location they were appropriating the complainant’s statutory and contract rights there; and in so far as they were compelling removal of the tracks at the company’s expense, they were impairing the value of, if not destroying, so much of its tangible property as was useful in the old location but incapable of use in the new. This the acts of 1906 and 1910 said, in effect, should not be done unless by agreement, or upon the company’s initiative. Counsel for the freeholders rely upon the City of Albany v. Watervliet Turnpike and Railroad Co., 108 N. Y. 14 The case is not opposed to the views here expressed. Property of the company included within the city limits, as extended, was condemned by the city. The company took the compensation awarded to it. It was afterwards directed to change the location of its tracks in the street. The decision was that it could not complain because so ordered; for the cost of making the change was, presumably, included in the condemnation money.

Under the agreement made with the board, pending this controversy, it would seem that the company is entitled to the compensation therein stipulated.


author: Stevens, Y. C.

text:
    Roseville Trust Company v. Harvey Mott et al.
    [Decided December 20th, 1915.]
    1. 4 Oomp. Stat. 1910 p. 5668 § 22, under which a trust company was incorporated, giving the commissioner of banking and insurance authority on finding certain conditions after investigation, t'6 take possession of its property and business as against its directors, and to collect and distribute its assets, as amended by P. L. 1918 p. 282, providing that when the commissioner finds a trust company’s violation of its charter or its conduct of business in an unsafe or unauthorized manner, he may take possession of its property and business, until it shall resume business or its affairs are finally liquidated, and collect moneys due the company, conserve its assets and business, and liquidate its affairs, and in the name of the company prosecute and defend all suits, was not unconstitutional as depriving the company of its property without due process of law or at all, as the property is thereby better secured when those who owed it debts are made to pay them.
    2. In a suit by such commissioner in possession of a trust company’s property and business for the losses to the company resulting, from their negligence as directors, defendants were in no position to raise the objection that the statute authorizing the commissioner’s possession was unconstitutional as a deprivation of the company’s property without due process of law, as the statute did not affect their rights or touch the question of their liability.
    3. In such bill a paragraph alleging that some of the directors had made partial restitution of losses to the commissioner in settlement of his claims against them, severally on behalf of the trust company, pursuant to an agreement and to the statute without prejudice to the causes of action against the other directors, did not enure to the benefit of all the directors, so as to bar the suit, as their liability was a joint and several liability.

      Mr. Roger Ilintls, Mr. William A. Kirk and Mr. Edward F. Clark, for the complainants.

      Mr. Olto A. Stiefel and Mr. Abram H. Cornish, for the defendants.
   Stevens, Y. C.

This is a bill filed by George M. LaMonte as commissioner of banking and insurance on behalf of and in the name of the Roseville Trust Company. It charges that the commissioner as such, having concluded that it was unsafe and inexpedient for the company to continue its business, took possession of its property and business pursuant to the provisions of an act entitled “An act concerning trust companies” (Revision of 1899), as amended by chapter 171 of the laws of 1913. It charges further that the company was insolvent and that the insolvency was produced by the criminal negligence of its directors.

Tlie application "is to strike out the bill on the ground—first, that the commissioner of banking is without right or title to bring this suit, the act of 1913, under which he is proceeding, being unconstitutional; second, that the commissioner has released certain of the directors and that his release has enured to the benefit of all; third, that the allegations of the bill are not sufficiently specific and that they do not state a cause of action.

The first objection is grounded upon the idea that the act of 1913 is unconstitutional in that it authorizes the commissioner to take possession of the property and business of the company and to collect and distribute its assets on his own motion and without judicial warrant. The act (P. L. 1913 ¶. £8£) provides, inter alia, that whenever it shall appear to the commissioner that any trust company has violated its charter or is conducting its business in an unsafe or unauthorized manner,

“the commissioner may forthwith take possession of the property and business of such trust company and retain such possession until such trust company shall resume business .or its affairs be finally liquidated as herein provided. * ® * Upon taking possession of the property and business of such trust company, the commissioner is authorized to collect monies due to such trust company and do such other acts as are necessary to conserve its assets and business and shall proceed to liquidate the affairs thereof as hereinafter provided. The commissioner shall collect all debts due and claims belonging to it,”

and “may in the name of such trust company prosecute and defend any and all suits and other legal proceedings.”

The act further provides that whenever the company of whose property and business the commissioner has taken possession deems itself aggrieved thereby, it may at any time within ten days after such taking possession apply to the court of chancery to enjoin further proceedings. This it has not done.

Assuming that the defendants are in a position to take the objection, it is a very narrow one. By the terms of section 22 of the act of 1899 (Cómp. Stat.-p. 5654), under which the company was incorporated, the commissioner was authorized to take the same possession for the same reasons. In the event that he found after investigation .that a certain condition of things existed, possession of the company’s property and business was to pass from the directors to himself. This was part of the contract impliedly incorporated into the charter. The precise objection must therefore be that the legislature had no right by amendment, after the trust company had been organized, to provide that to the possession and business so taken should be added the right to preserve it by reducing dioses in action into possession, and by enforcing other claims. Such an insistment does not seem to me to be even plausible. The company is not thereby deprived of its property, without due process of law or at all. On the contrary the property is all the better secured when those who owe it debts or duties are made to pay or perform them. A similar act has been sustained by the New York court of appeals. Carnegie Trust Co. v. Kress, 109 N. E. Rep. 1068.

But the defendants are in no position to raise the objection. The property taken is the company’s; not the defendants’. If anjdiody is aggrieved, it is the company, and the company does not complain. If it had felt itself aggrieved, it might according to the act itself, at any time within ten days after possession taken, have appealed to this court, or if it questioned the right of the commissioner on constitutional grounds, it could have applied to the supreme court.

The trust company sues the defendants for the losses resulting from their negligence. The defendants answer that the company is being managed by one who has a legislative but not a constitutional warrant to do so. Whether he has or not, is quite irrelevant to the question whether the directors have failed in their duty. The law is settled that it is only in cases where a statute affects the rights of the parties to the proceeding that courts will pass upon the question of its constitutionality. Lang v. Bayonne, 74 N. J. Law 465; State v. DeLorenzo, 81 N. J. Law 613. Here the statute does not in the remotest degree touch the question of the directors’ liability. They are liable to the corporation in the same way and to the same extent whether those who are managing the corporation have, de jure, a right to manage it or not; whether the statute be or be not constitutional. Just as well might the defendants object that at the time the suit was instituted there were two boards, each claiming to be the rightful manager; one a de facto board in actual control, and another a de jure board, entitled to control. This court could not, even in a direct proceeding, determine which was the legal, board (Kean v. Union Water Co., 52 N. J. Eq. 813), and much less, as it seems to me, can it in this proceeding, pass upon the commissioner’s title.

It is next insisted that a release has been given to some of the directors and that this enures to the benefit of all and is a bar to the suit. The paragraph relied upon reads as follows:

“32. That W. P. O., W. P. [and others named] have made partial restitution of said losses, which your orator has accepted from them respectively in settlement of his claims against them severally on behalf of said Roseville Trust company, pursuant to an agreement duly made with said directors on December 10th, 1913, and pursuant to the express provisions of the statute, but without prejudice to the causes of action against the other directors as herein alleged.”

In Crane v. Alling, 15 N. J. Law 423, it was held that a release to one of two joint and several obligors is a release to both, but that a covenant not to sue one of several obligors does not have the effect of a release except to the one to whom it is given. In Bowne v. Mt. Holly National Bank, 45 N. J. Law 360, the court of errors held that a technical release under seal given to one of several obligors, if it provide that it is not intended to release or discharge the others, will lie construed as a covenant not to sue. There has been some conflict of decision on this question elsewhere (McBride v. Scott, 93 N. W. Rep. 243; Dwy v. Connecticut Co., 92 Atl. Rep. 883), but any discussion of it here is out of place, for the question is settled by our own court of last resort.

The liability of the directors of the Eoseville Trust Company is a joint and several liability. The agreement made with those who have settled is not, as far as appears, a technical release; but if it be, it contains a reservation of the right to sue and so will not operate as a discharge <of those who are not parties to it. It would, because of the reservation, still be construed as a covenant not to sue.

The third objection is that the bill is not sufficiently specific. As to this, a careful perusal of the bill shows that it is drawn according to approved precedents. Halsey v. Ackerman, 38 N. J. Eq. 501; Wilkinson v. Dodd, 42 N. J. Eq. 235, 647. Its allegations are “as circumstantial and definite as the rules of pleading require.” It would answer no useful purpose to go over them, paragraph by paragraph. It is sufficient to say that, taken as a whole, a clear case of negligence is presented. If a bill of particulars “may be justly required,” the court may in its discretion order it. P. L. 1915 p. 192 § 32.

I think the application should be denied.


text:
    Helen F. Holly v. David M. Kellogg, Jr., et al.
    [Decided May 26th, 1915.]
    At a sheriff’s sale, properly advertised and regular in other respects, lands alleged to be worth $6,500 were sold for $93.34, under execution issued on a judgment for $254.37 recovered against the complainant widow’s deceased husband in his lifetime and paramount to the dower right of the complainant, such sale being subject to another judgment having priority recovered against his heirs for $5,658.58 and costs, and the purchaser being the owner of' both judgments. Upon a bill filed by the widow to annul the sheriff’s deed alleging that the property was sold for a grossly inadequate price, and the purchaser, or his father for him, was guilty of inequitable conduct, namely, “the purpose fraudulently and deceitfully to cut out” her dower right—Held, (1) that such allegations of the bill do not indicate fraudulent conduct on the part of the purchaser or his father; (2) that the purchaser was guilty of no fraud in procuring an assignment of the earlier judgment, he having the same right to acquire it as the complainant or anyone else, even if his motive were bad; and (3) that the bill is defective in not showing how valuable the widow’s dower is.

      Mr. Samuel Koestler, for the complainant.

      Mr. J. II. Thayer Martin, for the defendants.
   Stevens, V. C.

This is a bill to annul a conveyance made by the sheriff of Union county to David M. Kellogg, Jr., in January last. The property, consisting of four tracts of land, was sold under execution issued on a judgment obtained in the supreme court by the National Bank of New Jersey against John J. Holty, on March 15th, 1898, for $254.37. John J. Holly died in February, 1909. The complainant is his widow, and inasmuch as he married her after the recovery of the judgment, the judgment is'paramount to her dower right. The complaint is that the property was sold for a grossly inadequate price, and that David M. Kellogg, Jr., or his father for him, was guilty of inequitable conduct in the purchase; the inequitable conduct being “the purpose fraudulently and deceitfully to cut out” the complainant’s dower right. The property, alleged to be worth $6,500, was sold for $93.34. This price would, no doubt, shock the conscience were it not for the fact that the property was subject to another judgment-having priority, recovered in February, 1913, against Holly’s heirs, for $5,658.58 damages, and $54.09 costs. Outside of the vituperative adjectives used in the bill, I fail to find any facts pointing to fraudulent conduct in the Kelloggs. They owned the larger judgment and had procured an assignment of the smaller, and they had issued execution thereunder. If execution had first issued on the bank judgment, that judgment would have been a first lien and the case would have stood differently, but execution was first issued on the subsequent judgment and the latter had become a lien prior to the first, except on the dower right which the subsequent judgment did not touch.

Kellogg was guilty of no fraud in procuring an assignment of the first judgment. He had the same right to acquire it that •complainant, or anyone else, would have had, and that, too, even if his motive were bad (Davis v. Flagg, 35 N. J. Eq. 491), of which there is no proof. He owed no duty to the complainant or her assignee. The bill does not pretend that he acted as her agent or trustee, or that lie had made any representations as to how or at what time he would sell. The sale was'properly advertised and in other respects regular.

The bill is, besides, defective, in that it does not show how valuable the widow’s dower is. It would seem that the lots are unimproved, and if so, the value of the right would be small. The bill offers to pay the costs of the sale under the bank judgment, and if a resale is ordered, to bid a sum in excess of the costs of the resale. It seems to me that even if the case were otherwise good, the offer should be to pay the money due on the judgment.

I think the application to strike out should be granted.


author: Stevenson, V. C.

text:
    Margaretha Schreiber v. Charles Schreiber.
    [Decided November 16th, 1915.]
    While the surety on a ne exeat bond does not stand in the position of bail upon a recognizance to the extent that he may surrender his principal, yet the obligation of the bond being that the party against whom •the writ is issued will remain personally amenable to orders and proceedings in the court, payment of the penalty of the defaulted ne exeat bond may be enforced from the surety in a court of chancery by summary proceeding on an order to show cause.

      On. petition for order directing surety upon a ne exeat bond to pay the amount of the penalty of the bond into court.

      Mr. Citarles IF. Kappes, for the petitioner.

      Mr. Maurice J. Breen, for Mr. William L. Schultz, surety.
   Stevenson, V. C.

The question which I understand is to be presented to the court of errors and appeals for settlement, is whether the practice which has prevailed in the court of chancery for many years, of enforcing the pajunent of the penalty of a defaulted ne exeat bond from the surety in the court of chancery by a summary proceeding on order to show cause served upon the surety, is correct and lawful or not.

The practice which has been followed in many cases to my knowledge is based upon the opinion of Chancellor Eunyon in the case of Wauters v. Van Vorst, 28 N. J. Eq. 103, which perhaps may be considered as containing a dictum favoring the practice, and particularly the opinion of Vice-Chancellor Eeed in Elliott v. Elliott, 36 Atl. Rep. 951, which seems to be a direct authority sustaining the power of the court of chancery in the premises.

Of the two cases cited by Chancellor Eúnyón and Vice-Chancellor Eeed (Musgrave v. Mendex, 1 Mer. 49, and Utten v. Utten, 1 Mer. 51), the former, the Musgrave Case, is not directly in point because the surety on the bond against whom the order went was a party to the suit. The Utten Case, however, decided by Lord Chancellor Elden in 1815, seems to be a direct precedent establishing the power of the court of chancery in England to order the sureties on a ne exeat bond-to pay the amount of the penalty into court. The order apparently went not only against the defendant but his sureties as well. Even in the Musgrave Case it must be observed that the liability of the surety, who happened to be one of the defendants, which was summarily enforced, had nothing to do with the relief .prayed for in the bill but was wholly a collateral matter. The proceeding was. against Mendex not as a co-defendant but as an obligor on the ne exeat bond. The Musgrave and Utten Gases are cited by Mr. ’Daniel as authorities for the proposition that, where the principal departs from the state without leave, “the court, it seems, will order the sureties to pay the money into court within a certain time.” % Dan. 171%.

The case of Collinridge v. Mount, Dick. 688, decided by Lord Thurlow in 1787, when carefully examined, has no bearing upon proceedings in the court of chancery to enforce a ne> exeat bond.

The case of Elliott v. Elliott was decided eighteen years ago and has been regarded as settling the law in the court of chanery, distinguishing between a ne exeat bond and a bond for maintenance or alimony, making the former enforceable against the sureties in the court of chancery, while the latter is left to be enforced in a court of law in accordance with the practice in the case of an injunction bond. In considering whether the distinction between these two bonds recognized now in the court of chancery is logical or not, regard must be had for Lord Hals-bury’s dictum that “the law is not always logical.”

Inasmuch as the order in this case appealed from is based upon controlling precedents, which have been followed in the court of chancery without question for a generation, it does not seem necessary to enter upon an extensive investigation of the historical and logical basis of a rule of practice or procedure by Avhieh, until the court of errors and appeals shall determine otherwise, the court of chancery is absolutely bound. Only a few suggestions relating to the equitable fitness of the rule thus established will be made here—suggestions which have occurred to me during the course of years in which I have frequently advised orders of the same kind as the one brought in question.

The slightest reflection will show the radical difference between the object of an injunction bond and the object of a ne exeat bond. The injunction bond stands as security for damages, positive injuries to the property rights of the party enjoined, which may be caused by the writ of injunction.

The Avrit of ne exeat is intended to keep the party against Avhom it goes personally amenable to the orders and process of the court in the suit. There is absolutely nothing in ah injunction bond which relates to the disposition of the person of the party who gives it. The party giving the injunction bond is the party who sues out the writ of injunction, while the party giving the ne exeat bond is the party against whom the writ of ne exeat is issued. All the authorities hold that the writ of ne exeat is “in the nature of equitable bail.” Mitchell v. Buch, 2 Paige 606; 29 Cyc. 384.

In respect of its object the ne exeat bond is, I thinkj in some aspects more like the recognizance of special bail, “bail above,” than the bail bond given to the sheriff, “bail below.”

It must be conceded, however, that in one very important particular the surety on a ne exeat bond does not stand in the position of bail upon a recognizance. In the latter case the principal is delivered into the custody of his bail and his bail may seize him and surrender him. In the former case the principal is not delivered into the custody of the surety nor has the surety any right to seize him or to surrender him. In re Wolf, 3 N. Y. Leg. Obs. 383. The situation in this respect is more like that-of the surety upon the bond to the. sheriff—bail below. There was an instance a few years ago where in some way a surrender of the principal by the surety on a ne exeat bond was effected in the court of chancery, but I am unaware by what course of irregular procedure this thing was accomplished. The ne exeat bond simply insures a certain course of conduct b3r the defendant, the principal on the bond, with reference to the jurisdiction of the court over his person, and if this conduct is not pursued there is a breach and forfeiture, and the principal and surety are alike liable on the bond. In order to assimilate the position of the parties on .a ne exeojt bond to that of bail at common law on a recognizance in respect of liability^ the legislature of New York in 1845 passed an act providing for the surrender of the. principal on a ne exeat bond and prescribing a course of procedure. The act is entitled “An act relating to bail in the court of chancery and for other purposes,” and, if I recollect aright, it covers all cases where a party is arrested in any suit or proceeding in the court 'of chancery.

It has seemed to me that the practice in respect of the enforcement of ne exeat bonds now brought in question, may perhaps be rested upon the idea that when a party as surety enters into this peculiar obligation on a ne exeat bond in the court of chancery, he makes himself a party to the suit for all purposes connected with the use to which the bond is put for the purposes of the suit. The surety may be deemed a party to the suit in analogy with the rule which makes the purchaser a.t a sheriff’s sale under process from the court of chancery a party to the suit, for all purposes connected with securing the objects for which the process has been issued and the sale has been made.

I think it is safe to say that the practice which has obtained of enforcing the obligation on a ne exeat bond against the surety by order to show cause in the court of chancery, makes for justice and economy in the administration of equity, and particularly in the administration of divorce law. In these divorce and alimony cases the amounts involved are frequently small and the parties interested are poor women. .Full justice as far as pbssible ought to be accorded to them in the court of chancery.

In my opinion, instead of limiting the jurisdiction of the court of chancery in cases like the one at bar, it would be far better by appropriate constitutional legislation to malee all sureties who give bonds in any .action or proceeding in the court of chancery, or in any other court, parties to the suit or proceeding, so as to give the court in which the bond is given full power to procure its enforcement, not by an original suit in some other court, but by an appropriate proceeding in the cause in which the bond is given. It does not seem to me that there is any objection to this view arising from the 'fact that the proceeding to enforce the bond may be deemed “summary.” An order to show cause in a case like this seems to correspond with a scire facias to enforce ■a recognizance.