can be obtained other than in the manner proposed, or at least no way which would be more fair to the present stockholders. It is engaged at the present time in work for the government. It needs money for prosecuting this work. If I should prevent the scheme going through, the result might be disastrous to the vast majority of the present stockholders. I am assuming, of course, that, when the plan is put before the stockholders at the meeting, the plan will be approved by an overwhelming majority. Of course, if it is not, much that I have said will have to be withdrawn. Assuming that this plan is approved by practically unanimous consent, is the court obliged at the suit of this single stockholder to protect his strictly legal right, to act in such a manner as would cause great harm to every other interest in the concern, and perhaps the general public, merely because the questions presented by him may be arguable? To cause mischief which, if on final hearing, it decides that it erred or, if the Court of Appeals finds it erred, it cannot undo. I think not. I reiterate what I said in the case of General Investment Co. v. Bethlehem Steel Co., 100 Atl. 349, under the fifth point. should come back here for such determination. Lest this opinion may be misunderstood, I desire to add that as presently advised I am not at all in doubt as to how I should decide this case upon the merits. Fundamentally important questions of this kind involving the construction of so many sections of the corporation act ought not to be determined, however, no matter how clear the court may feel, without careful consideration. That consideration cannot in the nature of things be given without time. If I should hold this case for a sufficient length of time to properly consider the merits, incalculable harm may be done. If I should decide now without that consideration that the plan as proposed is perfectly legal and no appeal is taken, a precedent would be created which ought not to exist without careful consideration. If, on the other hand, I should enjoin the consummation of the proposed plan, and the Court of Appeals should differ with me, the injury would have been done. The utmost extent to which I go is that the questions are arguable. The eminent counsel who argued the case do not waste a full day in arguing nonarguable questions, nor would I listen for a full day to counsel, however eminent, on a nonarguable question. I prefer in this case to place my decision squarely upon the ground that a court of equity may, where application is made to it for preliminary injunctive relief by a professional agitator, weigh conveniences. [2, 3] There is nothing proposed in the present plan which the company and all of its stockholders may not do, or at least may not estop themselves by acquiescence from questioning. There is no doubt but by unanimous consent the proposed new preferred can be placed ahead of the present preferred. There is no doubt but that the stockholders of the company may estop themselves from While it is true that Vice Chancellor Emquestioning the legality of the issuance of ery in the Pronick Case held that the stockpreferred redeemable at 115 or preferred holder had no adequate remedy at law, I convertible into common. Nor is there any presume upon the ground that there was no doubt but that the stockholders may waive exact method of ascertaining his damages, their pre-emptive right of subscription. If yet he has a remedy at law. If the acts of any of the acts charged can be said to be this corporation are illegal, he may sue at ultra vires if the stockholders acquiesce, law and recover compensation for such damthe sole person who may attack is the age as may be found. Although compensaAttorney General on behalf of the state. tion may be difficult to estimate, yet it can I decline to consider Venner as a proper rep- be done, at least with approximate justice resentative of the Attorney General, and I to both parties concerned so that it cannot decline to consider him as a proper rep-be argued that I am leaving him with no resentative of a class. The doctrine which remedy whatever. I referred to in the prior Bethlehem Steel Case is approved by the Court of Errors and Appeals in Simmons v. Paterson, 60 N. J. Eq. 393, 45 Atl. 995, 48 L. R. A. 717, 83 Am. St. Rep. 642. Without deciding, therefore, any of the questions raised, solely upon balancing the conveniences I will discharge the order to show cause. If when this case gets to the Court of Errors and Appeals on application for a stay, if one is made, that court thinks that this court should have gone further and actually decided the questions raised, it will be for that court, of course, to say whether the case If counsel for the complainant desire, I will compel the corporation to give a bond conditioned as the bond was conditioned in the case of the United Shoe Machinery Company. In that case the Court of Appeals upon the application to stay a merger required the defendant company to give a bond, I think of $250,000, conditioned to pay such damages as might be assessed by the Chancellor. It would seem that counsel in that case and the court conceived that there was some method of arriving at just compensation. It will be no more difficult to assess the damages of the present complainant, than it will be to assess the damages of the complainant in the Shoe Machinery Case. (88 N. J. Eq. 101) an estate in joint tenancy, except it be ex(No. 43/582.) pressly set forth in the grant or devise creating such estate that it was or is the intention (Court of Chancery of New Jersey. Sept. 27, 1917.) 1. DIVORCE 322-EFFECT-ESTATE BY ENTIRETIES. Where a husband and wife holding an estate by the entireties are divorced, the divorce works a severance of their interests, and they become either joint tenants or tenants in common, according to the law of the particular state in which the land is located. 2. DIVORCE 322-EFFECT-ESTATE BY EN TIRETIES. Where a husband and wife holding an estate by entireties are divorced, they will thereafter take property as tenants in common, the divorce working a severance, for 2 Comp. St. 1910, p. 1538, § 15, declares that no estate shall be construed and adjudicated to be an estate in joint tenancy, except it be expressly set forth in the grant or devise creating such estate, that it was or is the intention of the parties to create a joint tenancy, and not a tenancy in com mon. Bill by Leo T. Sbarbaro against Margaret E. Sbarbaro for partition. Hearing on motion to strike out answer. Motion sustained. Albert E. Scheflen, of Camden, for the motion. Joseph B. Tyler, of Camden, opposed. LEAMING, V. C. In this suit complainant has filed a bill for partition of certain real estate the title to which was acquired by complainant and defendant, as tenants by the entirety. Since complainant and defendant thus acquired the property their marriage relation has been dissolved by decree of di vorce a vinculo matrimonii. Defendant, the former wife, has answered setting up as a bar to the partition suit the claim that a tenancy by the entirety cannot be partitioned. A motion has been made by complainant against the answer by which motion it is sought to have this court determine whether under the circumstances stated the property can be partitioned. of the parties to create an estate in joint tenancy and not an estate of tenancy in common. 2 Comp. Stat. p. 1538, § 15. Where legislation of that nature has existed, the authorities above referred to have determined the severed estate to have become a tenancy in common. Only two authorities are to be found to the Contrary of the rule of severance as above stated. These are In re Lewis, 85 Mich. 340, 48 N. W. 580, 24 Am. St. Rep. 94, and Alles V. Lyon, 216 Pa. 604, 66 Atl. 81, 10 L. R. A. (N. S.) 463, 116 Am. St. Rep. 791, 9 Ann. Cas. 137. These cases hold that the right of survivorship incident to an estate by the entirety is a vested right and cannot be divested by divorce in the absence of express statutory provisions existing at the time of the inception of the tenancy. The preponderance of authority is overwhelmingly opposed to that view. In But I do not think the question here presented can be said to be appropriately open Buttlar v. Buttlar, 67 N. J. Eq. 136, 56 Atl. for further consideration by this court. 722, the bill was filed by a divorced husband for partition of land which was held by him and his wife as tenants by the entirety at the time of their divorce. The defense interposed related to matters other than the question here involved. Touching the right to maintain a bill for partition in the circumstances here present the learned Vice Chancellor, 67 N. J. Eq. at page 138, 56 Atl. at page 723, of the reported case, said: "That the effect of the divorce was to destroy the estate by the entirety was admitted not only in the answer of the defendant but in the argument, and seems to be the result not only of the authorities but of sound reasoning." The decree which was entered in the case was a decree for partition. On appeal this decree was affirmed by the Court of Errors [1, 2] This precise question has been be- and Appeals for the reason stated by the fore the courts of many of our states, and Vice Chancellor. 67 N. J. Eq. 729, 63 Atl. the conclusions reached have been almost uni-1118. While it does not appear in the reformly to the effect that the severance of the ported case how extensive consideration the marital relation by divorce also severs the learned Vice Chancellor may have given the estate, and that, in consequence, the parties question here involved, or the extent to which thereafter must hold by such new estate as that question may have been considered by the laws of the state permit; that as they the appellate court, the opinions as filed and cannot longer be tenants by the entirety, and the decree entered and affirmed can only be as the interests of neither can vest exclu- properly regarded by this court as giving sively in the other, they become either joint sanction to the view that absolute divorce tenants or tenants in common, according to severs an estate by the entirety in such manthe policy of the law of the particular state ner as to destroy the right of survivorship touching those two tenancies. Decisions to and thus render it subject to partition as a the effect above stated are numerous and will tenancy in common. be found collected in a footnote to 14 Cyc. page 728; the decisions subsequent to that note will be found in Cyc. Permanent Volume Annotations, 1901-1913, at page 1699. The statute of this state provides that no estate shall be construed and adjudged to be I will, accordingly, advise an order sustaining the motion. In view of the amendment made to the motion at the hearing by consent of the parties, no costs of this motion should be taxed by either party against the other. 73 N. J. Eq. 415, 75 Atl. 1101. The question, to the public, the third persons, within the now to be determined, therefore, is whether it was the intention of the Legislature to include counties within the scope of the act of 1885. We think such intention appears. The fundamental purpose exhibited in the statute is to prevent absolutely the distribution of offices among members of the appointing body, and thus protect the public against favoritism or partiality, if nothing worse, in the making of these appointments. It must be conceded that this purpose is equally as important in its relation to county as to other municipal governments; and the statute should be construed liberally so as to give as broad a scope to the remedy provided by it as the language used will justify. We conclude, therefore, that the original appointment of Mr. Haines, having been made in violation of this statute, conferred upon him no title to the office which he has ever since held. This being so, it follows that the supplement of March 21, 1912, providing that the term of office of a county superintendent of weights and measures should continue during good behavior, conferred no right upon Mr. Haines under his original appointment; for, of course, that act had relation to de jure, and not de facto, officers. Does the respondent's claim to be entitled to continue to hold the office of county superintendent of weights and measures by virtue of his appointment on January 1, 1913, rest upon any more solid foundation? The argument is that, although the small board was not legally elected, it was, nevertheless, a de facto body; that its appointment of the respondent to the office conferred upon him a de jure title; and that, having such title, the supplement of March 21, 1912, became applicable, and vested in him the right to remain in office during good behavior. It must be conceded that this appointment conferred upon Mr. Haines a de jure title to the office. It was so decided by the Court of Errors and Appeals in the case of Brinkerhoff v. Jersey City, 64 N. J. Law, 225, 46 Atl. 170. But in our opinion the contention that upon this appointment the supplement of March 21, 1912, became operative, and entitled him to hold during good behavior, is unsound. The people of Burlington county, having wrongfully assumed that the Small Board of Freeholders Act of 1902 was applicable to that municipality, voted to adopt the act, and then elected a small board in accordance with its provisions. Although the acts of this board were valid in respect scope of the powers of such a board, it could not exercise powers not conferred by the statute under which it assumed to act. In other words, the powers which it could exercise under the act of 1902 were those, and those only, which the statute conferred upon de jure boards of freeholders duly organized thereunder. Turning to that act, we find in section 6 (Comp. Stat. p. 511) a legislative declaration that the terms of office of all officers then holding office under the appointment of any preceding board should expire upon the organization of the new small board, and that the new board should fill the offices thus vacated for the term of one year only. This provision applies not only to offices then existing, but also to offices which should come into existence thereafter. It was so determined in the case of Earle v. Durham, 89 N. J. Law, p. 4, 97 Atl. 775; Id., on error, 100 Atl. 178. It was further held in that case that the effect of section 6 was to limit the term of all first appointees to one year only, without regard to the normal length of the term designated by the various statutes creating such offices; the theory of the legislation being that, as the new boards in appointing at one and the same time incumbents to so many offices would probably discover afterward that some at least of their selections were not up to the standard desired, public policy required that a short original term of equal length for every officeholder should be provided, leaving it to the board of freeholders at the end thereof, and when the defects in the governmental machine. should have become apparent, to make such changes in the incumbents of the various offices as their experience should then justify. Under the decision referred to the office of county superintendent of weights and measures comes within the scope of section 6 of the act. It follows, therefore, that the appointment of Mr. Haines on January 1, 1913. was for a term which expired on January 1, 1914; that at the expiration of that period the office of county superintendent of weights and measures became vacant; and that the board of freeholders which came into existence on the latter date had full authority to fill that vacancy. Their failure to do this conferred no right upon Mr. Haines. He remained in the office purely by the sufferance of the appointing body, and had no right to continue in it after his successor had been appointed, and had qualified. The relator is entitled to a judgment of ouster against the respondent. claim on another. The rule by which the court | imprisonment, even where he is liable, if that is to decide whether an amendment discharges liability rests upon different grounds from those bail, or dissolves an attachment so as to let in stated in the affidavit." subsequently attaching creditors, is correctly stated by Mr. Justice Wilde, as follows: 'Amendments in form merely will not dissolve an attachment, or discharge bail. To have this effect, the amendment must be such as to let in some new demand or new cause of action.' Haven v. Snow, 14 Pick. [Mass.] 33, 34; Wight v. Hale, 2 Cush. [Mass.] 493 [48 Am. Dec. 677]. See, also, Haynes v. Morgan, 3 Mass. 210. In the case before us, the amendment did let in a new cause of action, which was not known, even by the attorney, until after the writ, declaration, and arrest were made. In England, bail are not liable for any cause of action different from that which is stated in the process or in the affidavit to hold to bail. Tidd's Practice (1st Amer. Ed.) 242; Wilks v. Adcock, 8 T. R. 27; Wheelwright v. Jutting, 7 Taunt. 304; Thompson v. Macirone, 4 D. & R. 619." 1 Other cases in Massachusetts are Prince v. Clark, 127 Mass. 599; Dunsmoor v. Bankers' Surety Co., 206 Mass. 23, 91 N. E. 907. Cases in other states are Pell v. Grigg, 4 Cow. (N. Y.) 426; Bryan v. Bradley, 1 N. C. (Taylor) 177; Bradhurst v. Pearson, 32 N. C. 55; Hamlin v. McNiel, 32 N. C. 306; Cassidy v. Saline County Bank, 7 Ind. T. 543, 104 S. W. 829; Fish v. Barbour, 43 Mich. 19, 4 N. W. 502. In Hyer v. Smith, 3 Cranch, C. C. 437, Fed. Cas. No. 6979, Chief Justice Cranch said that: "The court is clearly of opinion that if the plaintiff amends his declaration by adding a count upon a cause of action, which could not be given in evidence upon the original declaration as sent out with the writ, or which is not contained in the affidavit to hold to bail, the bail must be discharged." And in Carrington v. Ford, 4 Cranch, C. C. 231, Fed. Cas. No. 2449, he observed: "That the reason for discharging bail upon amending the declaration is that it would be unjust to charge the bail upon a cause of action different from that upon which the bail was originally given, or where the amendment is of a defect existing at the time of entering bail and which would have defeated the plaintiff's action but for such amendment." [2] Now in the case in hand, the surety's undertaking was that if the petitioner sustained her charges of extreme cruelty, as laid in the original petition, and thereon a divorce was granted with permanent alimony as an incident, he would respond if the defendant failed to submit himself to proceedings to enforce the decree, and there his engagement ended; and when the petitioner failed to make out her case at the trial and substituted another cause upon which she recovered, his liability ceased. It may be surmised that when he performed this gracious act he was assured that the defendant was not guilty of the brutality of which he stood charged, or that the charges could not be sustained, and that there could be no decree, and to that extent was willing to take the risk of his enlargement; and it is equally permissible to suppose that he knew the defendant had abandoned his wife, and that if this were the complaint he would not have undertaken the hazard. But his motives are immaterial, for his accountability is fixed by the letter of his bond. As Justice Story said, in Miller v. Stewart, 9 Wheat. 680, 6 L. Ed. 189: "Nothing can be clearer, both upon principle and authority, than the doctrine, that the liability of a surety is not to be extended by implication, beyond the terms of his contract. To the extent and in the manner, and under the circumstances, pointed out in his obligation, he is bound, and no farther. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has the right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal. And courts of equity, as well as of law, have been in the constant habit of scanning the contracts of sureties with considerable strictness. * * Nothing can be better settled than the doctrine that, if an obligation be dependent on another obligation (and, by parity of reasoning, upon the legal existence of another instrument), and the latter be discharged, or become void, the former is also discharged." The question was put at rest early in this state in the case of Robeson v. Thompson, A further contention is that even if the 9 N. J. Law, 97, where the affidavit to hold surety cannot be held to the defendant's perto bail disclosed that the suit was on a book formance of the final decree, the bond ought account, but the cause of action as set out in to be forfeited because of a default in the the declaration was on a special agreement | payment of taxed costs on an order for alito pay the debt in question. In declaring mony pendente lite entered before the amendthe variance fatal and the surety exonerated, the Supreme Court said: ment was made. The answer to this is that there was no default until after the bondsman was released. The order to show cause why defendant should not be held in contempt was not issued until after the pleadings were changed. "Courts of justice suffer slight variances to be taken advantage of in this way. 2 Taunton, 107; 6 Term Reports, 363; 7 Term Reports, 80; 13 East, 273. And it is right they should do so. Whoever attacks the liberty of the citizen should know the grounds on which he does it. Our statute requires an affidavit of the cause of action, in order to hold to bail. And it should be stated truly. And bail may safely come forward, and protect the debtor from rendered. The rule will be dismissed with costs and, as the respondent's liability is at an end, the bond will be ordered canceled and sur (88 N. J. Eq. 130) ANDREAS v. ANDREAS. (No. 37/230.) (Court of Chancery of New Jersey. Sept. 18, 1917.) 1. DIVORCE -AMOUNT. 240(1)—PERMANENT ALIMONY Although there is no set rule, the allowance for permanent alimony is usually about onethird of the husband's income, the income of the wife figured in, but this does not include the amount for the support of the offspring. 2. DIVORCE ESTATE. 240(1)—ALIMONY - NATURE OF In fixing alimony, that husband's estate is largely land held for speculation and no income is derived from it should not defeat the justice of the case, and the amount should be fixed as though such investment gave profits at a fair rate of interest. 3. DIVORCE 240(5)—ALIMONY-AMOUNT. Where a wife got divorce for adultery and the husband married the guilty woman, alimony of $3,200 per annum for wife and child, where the husband's property, if put into a 5 per cent. investment, would give an income of $9,243, will not be held excessive, although wife has an estate of $11,000, and husband's estate is tied up in land bringing no income and bonds of a low rate of interest. Petition by Hattie Andreas against Wendel Andreas for alimony. From a report of the master fixing the alimony, defendant brings exceptions. Exceptions overruled. by the stipulation on file. By that sale the defendant became the owner of all the land south of West Englewood avenue, and extending along that avenue 2,562 feet. It is nearly all fine upland, and is about 1,300 feet feet in width on the westerly end. The buildin width on the easterly end, and about 1,200 ings on the property consist of: (1) A large dwelling house, with a large barn west of the River Road; (2) a double house, known as a two-family house, a barn and some small buildings on the east of the River Road. The 11-acre tract conveyed to the defendant by the petitioner had no buildings on it, and was a strip 200 feet wide running the length of the property from the River Road eastward, and constituted the entire frontage on West Englewood avenue. The master finds the value of all the real estate for the purpose of this inquiry at the sum of $103,500. The master also finds that the defendant's undisputed annual income from his personal property is $5,693. This income is derived from United States 4 per cent. bonds, New York Central 32 per cent. bonds, New York Central 4 per cent. bonds, Michigan Central 4 per cent. bonds, and shares of Wharf Com Vredenburgh, Wall & Carey, of Jersey City pany stock. The master, in fixing the alimo(W. H. Carey, of Jersey City, of counsel), for ny, assumed that under the law the defendpetitioner. McCarter & English, of Newark ant's income from the bonds should be con(Arthur Egner, of Newark, of counsel), forsidered as though he received 5 per cent. in defendant. terest, on the theory that he could, if he wished, sell the bonds and invest the money at 5 per cent. interest in some investment that was perfectly safe, and that if he chooses to keep his money invested in the bonds his wife and child must not be allow LEWIS, V. C. The master has reported that the sum of $3,200 a year should be decreed as alimony for the petitioner and the maintenance of the daughter of the petitioner and the defendant, the daughter being ined to suffer thereby. In regard to the dethe custody of the petitioner. The defendant excepts to the report, mainly on the ground that the allowance is excessive. The property of the defendant consists of farm land situate at Teaneck, Bergen county, in the state of New Jersey. There are all together 88.185 acres. The tract is located adjoining lands of the estate of William Walter Phelps, and is bounded on the north by West Englewood avenue, the principal road running from the River Road to the West Englewood Station on the West Shore Railroad, and by a tract of about 16 acres lying west of the River Road between that and the Hackensack river, included in the 88.185 acres. The land west of the River Road is swampy in part and the map shows two small streams running into the Hackensack river. fendant's real estate, the master charges him with 5 per cent. interest on the value of it, in spite of the claim of the defendant that he is unable to sell it or to secure any income out of it; the defendant claiming that at the present time it is a burden rather than a source of income to him. The master also finds that the defendant should be required to give security in the sum of $35,000, and that such security could be given by him without hardship or embarrassment by requiring him to deposit with the clerk of this court, or some trust company designated by this court, bonds now held by him of the par value of $30,000, and permitting payment of the interest accruing thereon to the defendant so long as the order of this court with respect to the payment of alimony shall be faithfully performed. Or, at the option of the defendant, he might be required to give to the petitioner his bond for the sum of $35,000, conditioned for the payment of alimony, pursuant to the order of this court, such bond being secured by a mortgage upon defendant's real estate with a At the time of the taking of the testimony a strip 200 feet wide, containing 11 acres, running along the entire northerly side of the property, east of the River Road, was owned by petitioner, but that was sold to the defendant by petitioner on July 20th of this year for the sum of $11,000, as appears like condition. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |