(108 A.)

563.

99

[5, 6] Counsel for the defendant questions the jurisdiction of this court to restrain the suit for deceit, contending that the complainant has a complete and adequate defense at law. Res adjudicata by a decree in equity is, doubtless, pleadable in the action at law, but the party holding the decree is not driven to that defense. It is the settled law of this state (and I quote from the opinion of this court in Putman v. Clark, 34 N. J. Eq.

[4] A test of the identification of the cause a deed in fee be put in issue in an action of action is, Would the evidence adequate to of trespass, and expressly found by the jury, a recovery in the second suit have been suf- such verdict and judgment upon it may be reficient to support the first? Cyc. vol. 23, p. lied on as a conclusive evidence of such fact, 1158. In the equity suit the thing controvert- on the trial of a real action or writ of right, ed was whether the complainant misrepre- It has become a fixed fact between these parbetween the same parties, for the same estate. sented the nature and character of the secu- ties for all purposes.' rity of the second mortgage, however the misrepresentation may have been phrased; and These cases hold the judgment to be an esthe determination of that question by the toppel though the suits involve different court must be regarded as a finality. The claims; a fortiori is a judgment a bar to defendant threw her lot with the court of a second suit involving the same cause of chancery, and after an exhaustive investi-action, only seeking different relief. See In gation, and upon principles more favorable re Walsh's Estate, 80 N. J. Eq. 568, 74 Atl. to her than the law courts could afford, the cause, which she again desires to litigate, was determined against her, and by that determination she is bound. Marsh v. Masterton, 101 N. Y. 401, 5 N. E. 59, contains many examples of the rule of former recoveries, but we need not go beyond our own books for illustrations of the application of the doctrine. In City of Paterson v. Baker, 51 N. J. Eq. 49, 26 Atl. 324, this court decreed the surrender of two city bonds, to be canceled, based upon the conclusiveness of a judgment | 532, affirmed by the Court of Appeals) that— in an action at law brought by Baker to recover on the interest coupons of the bonds. The suit had been determined against him on the ground that he was not the bona fide owner of the bonds. Vice Chancellor Van Fleet, as usual, illuminated his learned discussion of the rule of res adjudicata by the citation of eminent authorities. A reference to a principle in one of the cases cited, that of Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195, will serve to demonstrate the applicability of the rule to the present case. [7] Another point was suggested—just that After stating that where the second suit is—which ought not to be passed without combased upon the same claim or demand involv- ment. The proposition advanced is that tlie ed in the first, judgment in the first must be decree is not a bar to the action at law betreated as an absolute bar, Mr. Justice Field cause the Court of Chancery was without said: jurisdiction to grant the relief prayed for, even had it found that fraud had been pèrpetrated, because of the equities of an innocent purchaser. At the time the defendant filed her bill to rescind the contract the complainant had parted with the land to Benker, a bona fide purchaser. This fact was set up in the bill, and the good faith of the purchaser was challenged. The Vice Chancellor, aftsuit upon a different cause of action, the in- er deciding that there was no fraud, and dequiry must always be as to the point or ques-nying relief on that score, held, further, that tion actually litigated and determined. * Only upon such matters [as were actually litigated and determined] is the judgment conclusive."

"But where the second action, between the same parties, is upon a different claim or demand, the judgment in the prior operates as an estoppel only as to those matters in issue or points controverted, upon the determination | of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a

And by way of further illustration may be added the language of Chief Justice Shaw in Sawyer v. Woodbury, 7 Gray (Mass.) 499, 502 (66 Am. Dec. 518):

"It is not necessary that the action in which it [the judgment] is found, and that in which it is relied on as an estoppel, should be of the same kind, or for the same cause of action. cause of action. If a question upon the execution or validity of

"If, after a decree in equity, a party shall proceed at law for the same matter, equity will restrain him by injunction. Such suit at law is treated as contempt of court, for it is gross oppression to vex another with a double suit for the same cause of action. 2 Lead. Cas. in Eq. 1319 (635); Story's Eq. Jur. 889; Joyce on Inj. 1040; Simson v. Hart, 1 Johns. Ch. [N. Y.] 91 (a); Washington Packet Co. v. Sickles, 24 How. 333 [16 L. Ed. 650; Id.] 5 Wall, 580 [18 L. Ed. 550]."

The

Benker was an innocent purchaser, and for that reason also relief must be denied. fallacy of the point lies in the failure to distinguish between jurisdiction and the exercise of jurisdiction. The court unquestionably had jurisdiction, for it could and would have granted the relief prayed for had the charge of fraud, and notice thereof in Benker, been made out. If the fraud had been established and notice had not, the court would have refrained, not for lack of jurisdiction, but because it would not exercise its jurisdiction as against the higher equities of an innocent purchaser. Here the two issues, in

dispensable to a recovery, were tried and de- | Brothers v. Beveridge, 86 N. J. Law, 561, 92 termined, and both or either is res adjudica- | Atl. 384, and followed in Edwards Co. v. Exta and pleadable as the exigency may de celsior Drum Works, 88 N. J. Law, 189, 95 mand. Atl. 976, and Ruggles v. Ocean Accident Co.,

The complainant is entitled to a perpetual 89 N. J. Law, 180, 98 Atl. 318. injunction.

(92 N. J. Law, 93)

E. L. DOWNS CO. v. OWEN MAGNETIC
CAR CO. OF NEW JERSEY.

(Supreme Court of New Jersey. July 26, 1918.)
1. APPEAL AND ERROR 219(2)—OBJECTIONS
IN LOWER COURT; FINDINGS OF FACT AND

CONCLUSIONS OF LAW.

[2] Chapter 62 of the Laws of 1916 can have no bearing upon this situation, for the obvious reason that that act contemplates that objection of some character shall appear upon the record; the evident purpose of the act being to relieve counsel only of the necessity of specifically submitting to the court the ground of objection. Here there was neither objection nor a semblance of objection.

The judgment will therefore be affirmed, with costs.

(89 N. J. Eq. 317)

LETTAU v. LETTAU.

(Court of Chancery of New Jersey. June 17, 1918.)

Where a cause is submitted upon an agreed statement of facts, showing a trial without a jury and a judgment for plaintiff, based on written conclusions, to which no objection was made, and it does not appear that objection was taken during the trial, nor request for findings or conclusions, the judgment will be affirmed. 2. APPEAL AND ERROR 181-OBJECTIONS IN LOWER COURT; CONSTRUCTION OF STATUTE. Where a cause is submitted on an agreed statement of facts and no objections or exceptions of any kind appear in the record, Laws A wife's request that her husband put into 1916, p. 109, the purpose of which is to re-writing his refusal to live with her held not to lieve counsel of the necessity of specifically submitting grounds of objection, has no application.

Appeal from District Court of Newark. Action by E. L. Downs Company against Owen Magnetic Car Company of New Jersey. Judgment for plaintiff, on a trial to the court, and defendant appeals. Affirmed.

Argued before SWAYZE, TRENCHARD, and MINTURN, JJ.

DIVORCE

37(7)-DESERTION; EVIDENCE OF

ACQUIESCENCE.

amount to an acquiescence in separation.

Petition for divorce by Jennie Lettau against Emil Lettau. On petitioner's exceptions to master's report. Exceptions sustained, and a decree nisi advised.

William B. Davidson, of Passaic, for petitioner.

LANE, V. C. The learned special master found the desertion continued and willful,

that the desertion was continued and willful

William Huck, Jr., of New York City, for but not obstinate. I agree with his finding appellant. Henry H. Fryling, of Newark, for re- for the required time, and I have come to the spondent.

MINTURN, J. The case is before us upon an agreed state of facts by the attorneys, which shows that it was tried before the district court without a jury, and that judgment was rendered for the plaintiff against the defendant. The court when rendering judgment filed a written statement of his conclusions. To this no objection was made or exception taken as far as the record shows; nor does the state of the case exhibit any objection or exception entered or taken by counsel during the course of the trial, or to the court's conclusions upon law or fact. Nor is there in the record any request to find certain facts or conclusions of law, to the refusal of which objection might have been taken and entered upon the record. The case simply presents a judgment based upon conclusions of the court and nothing more.

conclusion that it was also obstinate. The master based his conclusion upon the facts that at the time of the desertion, in March, 1912, after the husband had expressed his deliberate intent to leave his wife forever, and after he had refused her pleas and those of her mother to remain with her, the wife asked him to put his intention in writing, and that in 1914, when the husband came to the place of business of the wife and told her that, if she had the money to pay the expenses, he would take her to Europe, and upon her statement that she had no money, but that she would live with him in America, he had then said that he was through with her, and wanted to have nothing more to do with her, she again asked him to put the statement in writing so that they might live separate. The master distinguishes Grover v. Grover, 63 N. J. Eq. at page 774, 50 Atl. 1051, and Wilson [1] This situation clearly brings the case v. Wilson, 66 N. J. Eq. 237, 57 Atl. 552, upon within the ruling enunciated in Blanchard the ground that in this case the attitude of

(108 A.)

Certiorari by Frank Schumacker against the Township of Little Falls to review the proceedings before a justice of the peace, resulting in the imposition of a fine upon prosecutor for the violation of an ordinance of said township. Conviction set aside.

Argued before Justice MINTURN sitting alone pursuant to the statute.

Michael J. Murphy, of Paterson, for prosecutor.

Joseph MacDonald, of Paterson, for respondents.

mind of the wife was communicated to the husband. Vice Chancellor Stevenson, in Wilson v. Wilson, laid stress not so much upon the mere communication of the attitude of the wife to the husband as the effect upon the husband's mind. In the case at bar, the husband, as the master found, was a shiftless individual; he never supported his wife properly. In 1910 he abused her physically; she left him, but returned after a short absence, and lived with him until March, 1912, when he deliberately went. The wife had been advised by a lawyer in 1910, when she was contemplating a suit for separation and maintenance, MINTURN, J. The writ is designed to rethat it was advisable for her to have the con- view the proceedings before a justice of the sent of her husband, and it was undoubtedly peace at Little Falls, in Passaic county, with this advice in mind that, failing in her which resulted in the imposition of a fine upefforts to induce her husband to remain, she on the prosecutor, for the violation of the asked him to sign the paper which would ex-provisions of an ordinance of the township in press his intention to leave, and, unquestion-operating there a "merry-go-round" machine ably, this same idea was in her mind in 1914. In both instances the request to sign the paper came after an absolute refusal on the part of the husband to live with her. She in reality asked no more than that he put in writing what he had expressed orally. I cannot see that what the wife did amounted to an acquiescence in the separation, or that it had any effect whatever upon the mind of the husband.

upon Sunday, the 9th day of June last. The prosecutor was fined $25 for his offense, and thereafter obtained this writ to test the legality of the ordinance and procedure which condemned him.

[1] The procedure is attacked because the record sent up presents no recital of the testimony before the magistrate upon which it can be adjudged whether the particular act in question was illegal. An inspection of the

Exceptions will be sustained, and a decree record seems to support this contention, for nisi advised.

2. SUNDAY 2 TOWNSHIP MAY PROHIBIT OPERATION OF MERRY-GO-ROUND.

Township Act, empowering township committee to pass ordinances "to prevent and suppress breaches of the peace and disorderly assemblages" and omnibus provision (Act March 27, 1917 [P. L. p. 357] § 2), conceding to every municipality power to make ordinances for the good government, order, and for preservation of the public health, etc., empowers township to pass ordinance prohibiting the operation of a "merry-go-round" on Sunday.

it merely contains a recital that two witnesses testified to the act in question, and that from their testimony the magistrate conIcluded that the prosecutor violated the ordi

nance.

This meager return is not in compliance with the legal rule which requires a return of the testimony upon which the conviction was adjudged. Massinger v. Millville, 63 N. J. Law, 123, 43 Atl. 443; Kolb v. Boonton, 64 N. J. Law, 163, 44 Atl. 873.

[2] This defect obviously requires the setting aside of the conviction; but, since the legality of the ordinance was attacked in the argument, it may be well to consider that question so as to set at rest any doubt that may exist as to the powers of the township in that respect.

The Township Act (Pamph. L. 1899, p. 386) empowers the township committee to pass ordinances "to prevent and suppress breaches of the peace and disorderly assemblages."

Section 2 of the ordinance provides:

"That no person or persons shall on the first day of the week, coinmonly called Sunday, run or put in motion or cause to be run or put in motion any merry-go-round or carousal, swings or scups which are maintained for gain or revenue, or keep open and maintain any dancing hall or pavilion, under a penalty of twenty-five dollars for each offense, to be recovered for the use of the township."

Under this section the prosecutor was convicted. It must be manifest that the operat

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 108 A.-8

ing of a "merry-go-round" upon Sunday in legal title, who has never manifested such inany public place must tend to draw together terest in the property as an owner usually noisy and possibly disorderly assemblages, in manifests, and whose statements as to money violation of the Sunday law, and is the rea-lent or given are vague and contradictory.

son underlying its enactment.

The power contained in the Township Act is not only directed at such performances upon week days, but is in essence a general delegation of police power to the municipality, which may exercise it as a supplementary power in aid of the provisions of the Vice and Immorality Act, so as to preserve peace, and banish noise and the distraction of the workshop, and ordinary employments, on Sunday as a day of rest, under the American conception of orderly local government. Petit v. Minnesota, 177 U. S. 164, 20 Sup. Ct. 666, 44 L. Ed. 716.

That such an exercise of the police power is valid and constitutional has been determined by this court. Sherman v. Paterson, 82 N. J. Law, 345, 82 Atl. 889. Additional support to the authority claimed for the passage of the ordinance is furnished by the Home Rule Act (Pamph. L. 1917, p. 353, c. 152), which empowers the governing body to pass ordinances, inter alia, (1) to preserve public peace and good order, (2) to prevent disturbing noises.

Bill by Giovanna De Rogatis against William A. Megaro and others. Decree for complainant.

Decree affirmed 106 Atl. 890.

Anthony R. Finelli, of Newark, for appellants.

William Greenfield, of Newark, for respondent.

STEVENS, V. C. There can be no reasonable doubt that Ianneci holds the property in trust for Megaro. Megaro lives in a part of the property and rents the rest. He pays the interest on the building and loan mortgage and other charges. What money was paid to Mr. Hood on the last sale ($500) was paid by Megaro. He has never rendered any account of moneys received and paid to Ianneci. He has spent a considerable sum of money of his own in improving the property, and Ianneci has manifested no such interest in it as an owner usually manifests. Ianneci's statements as to money lent or given to Megaro are vague and contradictory. The The general delegation of powers contained only tangible evidence that he produced is a in this act is supplemented by an omnibus check of $300, which bears date nearly a provision (page 357, § 2) which concedes pow-year and a half before the property was acer to every municipality to make such ordi- quired from Schechner. The complainant is nances "for the good government, order, entitled to a decree. * and for the preservation of the public health, safety and prosperity of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this act or by any law of this state."

*

(89 N. J. Eq. 599)

CARTAN et al. v. PHELPS et al.
(Court of Chancery of New Jersey.
1918.)

May 20,

This general delegation of police power, usually designated the general welfare clause in such enactments, leaves no doubt that the 1. MORTGAGES 38(1)—EVIDENCE SHOWING passage of the ordinance in question was within the power conferred by law upon the township.

For the reason primarily stated, the conviction must be set aside, but the ordinance will be sustained, without costs to either party.

(89 N. J. Eq. 588)

DE ROGATIS v. MEGARO et al.

DEED ABSOLUTE A MORTGAGE.

Evidence held to show that a conveyance was principally, so far as the grantee was concerned, to secure him for the money owing by the debtor to him, and not to convey the property to him, except in a conditional way.

EVI

2. FRAUDULENT CONVEYANCES 296
DENCE OF DEBTOR'S INDEBTEDNESS.
In suit to set aside a conveyance as in fraud
of creditors, in the absence of contrary proof the
statements of the debtor as to the amount of
indebtedness owing by him to his grantee must

(Court of Chancery of New Jersey. Oct. 11, be accepted as stating the facts.

1918.)

Action by Andrew J. Cartan and another TRUSTS 44 (2) EVIDENCE SHOWING TRUST against Ernest L. Phelps and another. Decree in accordance with the opinion.

IN REALTY.

One who lives in part of the property and rents the rest and pays interest on the mortgage and other charges, having paid whatever money was paid to the seller on the last sale, and having spent considerable sums in improving the property, is entitled to decree therefor charging as trustee for him the holder of

Decree affirmed 89 N. J. Eq. 599, 105 Atl.

240.

Durand, Ivins & Carton, of Asbury Park, for complainants.

Fort, Hunt & Shipman, of Newark, for defendants.

(108 A.)

FOSTER, V. C. This action is brought (as to the amount of the indebtedness owing to set aside a deed of conveyance made by by him to Badgley, in the absence of any the defendant Phelps to the defendant Badg-proof to the contrary, they must be accepted ley for lands near Matawan in Monmouth as stating the facts.

county, because the same was made to defraud complainant and other judgment creditors of Phelps.

[1, 2] The proofs in this case satisfy me particularly the testimony of Mr. Geran, who prepared the deed, and of Mr. Bentley, the attorney of Phelps in the Conover Case-that Phelps, in executing the deed in question, made it to secure to Badgley the payment of an indebtedness of $1,000 or $1,200, and that Phelps also intended by this conveyance to prevent his property being reached, in case of an adverse verdict in the Conover Case, which was then about to come to trial, and the trial of which resulted in a verdict of $7,000 against him, which was subsequently set aside. I am further satisfied that the conveyance from Phelps to Badgley was a voluntary one on Phelps' part, unsolicited at the time by Badgley; and that the conveyance was in the nature of a security or mortgage further appears from the facts that the deed was not delivered until some months

I think the interests of all parties in this cause can be conserved and protected by a decree that the conveyance in question is, in effect, a mortgage between Phelps and Badgley, and that the property should be sold under the direction of a special master, and from the proceeds of the sale the amount due Mr. Badgley of $1,200, with interest, should be first paid, the balance of the proceeds, if any, can then be applied to the payment of the several judgments, in the order of their priority; and the surplus money, if any, can be paid into this court to await such further order as the court may make on the application of either Phelps or Badgley, or any other party interested in the surplus fund; and, a decree will be advised accordingly.

(92 N. J. Law, 638)

STATE v. AGNESI.

March 3, 1919.)

Concurring opinion.

For majority opinion, see 92 N. J. Law, 638, 106 Atl. 893.

WALKER, Ch. (concurring). The defenaant, indicted for murder, was convicted of murder in the second degree. He brought error in the Supreme Court, where the judgment was affirmed. He now brings error here.

after its execution; that it was not recorded (Court of Errors and Appeals of New Jersey. until some months after is delivery; that Phelps continued, after the delivery of the deed, to exercise acts of ownership over the property and rented the same and collected the rents thereof for some time; and that, subsequently, he made a further arrangement with Badgley, according to Badgley's testimony, whereby the deed was to be regarded as an absolute, rather than a conditional, conveyance of the property, upon Badgley paying to Phelps the further consideration of $1,000. Assuming that Badgley did pay $700 or $800 of this amount, as he claims, to Phelps, he also states that he has not paid the balance of this additional consideration, and never intends to do so. He thereby puts himself in the position of refusing to perform and complete the contract of purchase of the property, if such a contract were ever made. For the reasons stated, I am satisfied that the principal purpose of the conveyance of this property from Phelps to Badgley, as far as Badgley was concerned, was merely [1] Numerous decisions in our state hold to secure him for the money owing by Phelps to him, and not to convey the property to that the judge in commenting upon the evihim, except in a conditional way. Badgley, dence may express his own opinion of its imwhile he claims the amount of the indebted- port, provided he does not coerce the jury ness is nearer $3,000 than $1,200, as Phelps into finding a verdict in a case where the

The Supreme Court's opinion says that the judge charged that if the jury took the prisoner's version they must find him guilty of manslaughter at least. But the judge went further and said that if the jury took his version of the facts, of course, for he had pleaded not guilty to the charge-they could not under any circumstances acquit him, but must find him guilty of manslaughter at least. This comes dangerously near being a direction of a verdict of guilty.

facts are in dispute or where reasonable stated to Geran and Bentley, is unable to produce any vouchers to substantiate his minds might draw different conclusions from statements, and I am therefore obliged to admitted or uncontroverted facts. And it is, rely upon the only tangible proof in the case I think, settled law that a trial judge may regarding the amount of this indebtedness, not direct a verdict of guilty in a criminal viz., that given by Mr. Geran and Mr. Bent-case. ley, based upon statements made to them by As was well said in United States v. TayPhelps at the time when he had the deed pre- lor (C. C.) 11 Fed. 470: pared, and shortly thereafter; and, while Phelps' statements would not be conclusive

"In a criminal case the court cannot direct a verdict of guilty even where the facts are admit