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ership of property would be remedied in ment. His mistake was one of fact, and the equity. In Beauchamp v. Winn, 6 H. L. negligence of the complainant was the real 223–264, s. c. 22 Eng. Rul. Cas. 889, a mu- ground for his defeat. This case and Lyon tual mistake in an agreement as to the rights v. Richmond, supra, are cited in the case of the parties resulted in a correction of the of Bentley v. Whittemore, 18 N. J. Eq. 366agreement.

374, in which case Chancellor Zabriskie statThe result of the English cases is summed ed that certain mortgages which had been up by Mr. Kerr in the remark “that if a man, canceled upon the faith of an assignment, through misapprehension or mistake of the which assignment he held to be void, could law, parts with or gives up private rights to not be restored because the cancellation was property, assumes obligations, upon induced by a mistake at law. This case was regrounds upon which he would not have act- versed (19 N. J. Eq. 462, 97 Am. Dec. 671), the ed but for such misapprehension, a court of Court of Appeals holding that the assignment equity may grant relief, if, under the gen. was valid. The assignment, therefore, being eral consideration of the case, it is satisfied valid, the question of the establishment of the that the party benefited by the mistake can- canceled mortgages was eliminated from the not in conscience retain the benefit or advan- case, and the chancellor's remarks became tage so acquired." Kerr on F. & M. p. dicta. This statement of the equitable rule was cited The remarks of Chancellor Kent appear in with apparent approval by Chancellor Run- Executors of Wintermute V. Ex. of Snyderyon in Macknet v. Macknet, 29 N. J. Eq. et al., 3 N. J. Eq. 489, where there was an 54-59, and in Martin v. N. Y. S. & W. R. assignment of the interest of certain parties R., 36 N. J. Eq. 109–112.

under a will, and their ignorance of their The equity cases in this country, more par- rights under that instrument misled them to ticularly the earlier cases, exhibit a less lib- the execution of the assignment. Chancellor eral spirit in granting relief for mistakes in Vroom refused to grant relief, upon the law. This resulted mainly, I think, from the ground that the mistake was one of law. The great influence which the early reported cases learned chancellor, however, was careful to decided by Chancellor Kent had in shaping exclude the inference that in his judgment the early equity jurisprudence of this coun- there could be no instance where equity could try. The case of Lyon v. Richmond, 2 Johns. relieve against mistakes of law. The case itCh. 60, was an application to set aside an self holds that this dispositive instrument, the agreement because it was entered into under execution of which had been induced by the influence of a supposed condition of the mistake of law, would not be rectified. law, and afterwards the Court of Errors ren- This was the doctrine announced by Chandered a decision which changed the law as cellor Runyon in Hampton v. Nicholson, 23 it was supposed to exist when the agreement N. J. Eq. 423. The chancellor said that was made. In deciding that the court could where a purchaser accepts a deed by which grant no relief, Chancellor Kent, having in no title is conveyed when there is no misapmind, of course, the particular facts of that prehension as to the facts and no fraud and case, made some general remarks in respect no warranty of title, he has no redress in to the impolicy of a court of equity attempt. law or equity. But in that case a mort. ing to relieve against mistakes of law. These gage had been canceled, and the chancellor remarks appear again and again in the earlier proceeded to remark: "If the mortgage had cases, being used as a general authority been canceled without actual payment on against the granting of relief in all cases of the mistaken supposition that the deed mermistakes of law. These remarks appear in the ged and satisfied it, and the debt of three opinion in the decision in the case of Garwood hundred dollars due from the testator to the 1. Adr. of Eldridge, 2 N. J. Eq. 145, 34 Am. complainant had been given up and disDec. 195, which case is invoked as conclu- charged on the belief that it was satisfied sive against the restoration of this mortgage. by the amount due for the conveyance, this In that case Chancellor Pennington declined canceling and satisfaction, being entirely to establish certain mortgages which had without consideration, could in equity be set been canceled by a mortgagee who purchased aside, and the debts be declared to be subthe equity of redemption, and by the can- sisting." In Skillman et ux. v. Teeple, 1 cellation a judgment, of the existence of which N. J. Eq. 232, the holder of notes released the mortgagee was ignorant, became a su- a mortgagee from his liability upon the notes perior lien upon the property. The chan- under a misapprehension as to her legal cellor stated the rule to be that relief would rights at the time. Drake, Master, said: not be granted to the complainant if his mis- "In this case there can be no doubt that take was as to the legal effects of the can- the complainant and Teeple acted under a cellation in advancing the lien of the judg- mistake or misapprehension of her rights. ment. The remarks of the chancellor were Under such a mistake she signed a parol uncalled for, because he found that there agreement without any consideration, and was no mistake of law at all. The mistake highly prejudicial to her interests. I am of was in the mortgagee's failure to search the the opinion that the agreement should be record, the result of his negligence being that set aside." he was unaware of the existence of the judg- Our later cases display a desire to disa


cover some ground to rectify an inequitable an account of the rents and profits as result flowing from mistakes of all kinds. basis for ascertaining the amount due upon Chilver v. Weston, 27 N. J. Eq. 435; Macknet the mortgage. v. Macknet, supra; Martin v. N. Y. S. & W. R. R., supra; Young v. Hill, 31 N. J. Eq.

(65 N. J. E. 5) 429. The ability of courts of equity to rec

HAYES et al. v. UNITED STATES PHONOtify mistakes arising from ignorance of the

GRAPH CO. et al. law is everywhere acknowledged to exist in certain instances. The propriety of exer

(Court of Chancery of New Jersey. May 26,

1903.) cising this power must depend upon the

JUDGMENT-RELIEF IN EQUITY-BILL-SUFFIcircumstances which surround each case. It

CIENCY-NEW TRIAL. will depend upon whether a party who asks 1. A bill seeking relief against a judgment at relief has been negligent; whetier he has law on the ground that the complainants had been led into his belief by the other party;

a valid legal defense to that action, which they

were prevented from presenting because the whether other innocent parties will be in

evidence on which such defeuse could be made jured by a rectification of the mistake; or was not discovered until after the trial and whether the mistake can be regarded as one judgment, must not only show the relevancy or

materiality of such evidence, but must also of fact, although indirectly resulting from

show that proper diligence had been used in a mistaken notion of the law. All these

the preparation for such trial, or that no diliand other features are to be considered in gence would have discovered such evidence, and deciding whether it is equitable and politic it is demurrable if it fails to make such aver

ments. to put the mistaken party in statu quo. The

2. Siuce the passage of the amendment to the cases in which the power has been exer- practice act, which permits application for a cised are collected and classified in 20th new trial at law after the term (2 Gen. St. p. Enc. of Law (2d Ed.). p. 16. In my judg. 2589, 8 328), a court of equity will decline to

exercise its jurisdiction in respect to new trials ment, the power should be exercised in the

when the relief sought may be obtained by an present case. The mistake was in respect application to the court of law. to the ownership of the property upon which (Syllabus by the Court.) the canceled mortgage was an incumbrance, Bill by Howard W. Hayes and Simon S. and the English cases treat such a mistake Ott against the United States Phonograph as one of fact.

Company and others. Demurrer to bill susAgain, the annulment of the mortgage was tained. without any consideration whatever. Noth

Joseph L. Munn, for complainants. Eding was received by the mortgagee and noth

ward Q. Keasby, for defendants. ing was paid by the heirs. The language of the Supreme Court of Maine (Freeman v.

MAGIE, Ch. The United States PhonoCurtis, 51 Me. 140–145, 81 Am. Dec. 564) graph Company and J. Stogdell Stokes, two in respect to the execution of a release in

of the defendants, demurred to the bill in duced by a mistaken notion of the rights

this cause. The prayer of the bill is that of the releasor is pertinent. The court said:

the said company and Charles H. Burr, Rob“There was nothing between the parties ert C. Banes, and J. Stogdell Stokes may as a basis for any negotiation, and there

be decreed to refund and pay back to the was no claim of the one against the other,

complainants, as executors of George W. valid or invalid. It was an isolated act

Tewksbury, deceased, the amount, with inthe obtaining of a release of five-sixths of

terest, of a judgment recovered against coma valuable estate without any pretense of

plainants as such executors, and paid by any consideration, through the ignorance of

them. The facts upon which this prayer is the parties giving it. Whether the defend

predicated are stated in the bill as follows: ant was ignorant or not, it would be a re

That the complainants are the executors of proach to the law if he should now be

George W. Tewksbury, deceased, holding let. permitted to retain the fruits of such a

ters testamentary from the surrogate of the proceeding.” In my judgment, the heirs

county of Essex, in which the testator died; cannot, in the present case, equitably retain

that an action was brought against them, as the advantage which the mistaken act of

executors, for the recovery of money alleged cancellation gave them.

to be due from the testator to the United It is said, however, that the complainant

States Phonograph Company; that the action was negligent in not applying earlier for

was brought in the circuit court of Essex relief. It does not so appear. Nothing ap

county, and caine to trial before that court pears to show when it obtained its knowl.

upon the plea of the general issue interposed edge of the true condition of affairs. The

by complainants; that the trial resulted in complainant has been in possession since

a verdict in favor of the company for $2,1895. If negligence rested anywhere, it

197.05, upon which verdict a judgment was would seem to be upon the parties who per

entered, and the amount of the judgment was mitted the complainant to receive the rents

afterwards paid to the said company by the and profits from the property up to the

complainants; that the complainants have present time.

since learned that at the time the action was There should be the usual decree of fore. closure, with reference to a master to take I 1. See Judgment, vol. 30, Cent. Dig. $ 884.

brought the sum above mentioned was no affirmed the decree, with the addition that longer due from the testator or his estate, the plaintiff in attachment should be forbut had been assumed and agreed to be paid ever enjoined from enforcing his judgment, by one Challenger; that said Challenger had, unless he should, within a specific time, open before the institution of said suit, executed the same, and let in the defendant to defend and delivered to said company his written the suit. Herbert v. Herbert, 49 N. J. Eq. obligation to pay said sum, and assigned to 565, 25 Atl. 366. said company certain collateral securities for Whether, upon such a bill, the appropriate its payment, which obligation and securities decree would enjoin the enforcement of the said company bad accepted in settlement and judgment, or require restoration of something satisfaction of its claim; and that complain- obtained by its enforcement, is immaterial ants had no knowledge or information at the to the present inquiry. For the bill, in either time of the trial as to the assumption of the aspect, is a bill for a new trial on the ground debt by Challenger, or of the acceptance by of newly discovered evidence. It is well setthe company of the obligation and security tled that such a bill must disclose the chargiven by Challenger to the company. The acter of the evidence alleged to have been bill charges that the obligation of Challenger, discovered, so as to show its relevancy and with the collateral security, was in the pos- materiality, and that it should further make session of the company at the time of the known that there had been proper diligence pending of the suit and its trial, and was used in the preparation for the trial of which known to the officers of the company, who complaint is made, or that no diligence would concealed the same from the complainants. have succeeded in bringing the evidence to

The specific relief prayed for in the bill is light in time. Failure in these particulars is a decree for the refunding of the money paid held by the Court of Errors to render such by complainants upon a judgment obtained a bill demurrable. Hannon v. Maxwell, 31 against complainants, and yet remaining upon N. J. Eq. 318. the record of the court in which it was ren- It may be open to question whether this dered. While that judgment remains open bill discloses evidence material to the defense and unreversed, it presents an absolute bar of the action at law. There was admittedly against the recovery by complainants, in an obligation of the testator to the company. an action at law, of the money which they The bill does not assert that it was released, have paid thereon. An appeal to a court of but only that another obligation was subequity for relief against a judgment volun- stituted therefor. Whether a case of notarily paid must be supported by charges of vation is stated is doubtful. Addison on facts justifying such relief. In the case made Contracts, 372. But there is no attempt by the bill, it is not sought to interfere with made in the bill to show that complainants the judgment in question because complain- used such diligence as was required of them ants bad an equitable defense which could to discover evidence for the trial at law, or not be interposed in the action at law. The any diligence at all. On the face of the ground of interference claimed is that com- charges of tbe bill, it would seem that due piainants, being defendants in the action in diligence would have disclosed the present which the judgment was rendered, had a alleged defense. But if that is not a justifivalid legal defense on the merits, which able inference, the rules of equity pleading they were prevented from maintaining by at least require a statement of the diligence fraud, mistake, or accident; there having in fact used. For this fault, the demurrer been no negligence or laches in respect to must be sustained. such defense. 3 Pom. Eq. Jur. § 1364. When The bill is also faulty in another respect. such a case for interference is made out, and Bills of this character are not entertained by the judgment has not been paid, relief is a court of equity if relief on the case made granted by enjoining the enforcement of the can be obtained by resort to the court of law. judgment until the plaintiff has consented When courts of law refused to consider apto a new trial, or a new trial will be other. plication for new trials, courts of equity wise bad. 2 Pom. Eq. Jur. $ 836; Cairo & exercised jurisdiction in relieving against Fulton R. R. V. Titus, 32 N. J. Eq. 397. judgments which had been obtained when When such a case for interference with the relevant material evidence had not been projudgment has been made out, and the judg- duced in defense, because the defendant, alinent has been enforced, equity will require though diligent in preparation, had not disrepayment or restoration of money or prop- covered it. But as courts of law came to erty inequitably received upon the judgment. listen to applications for new trials on the Williamson V. Johnson, 5 N. J. Eq. 537; ground of newly discovered evidence, courts Herbert v. Herbert, 47 N. J. Eq. 17, 20 Atl. of equity withdrew from the exercise of the 290; Id., 49 X. J. Eq. 70, 22 Atl. 789. In the jurisdiction. Hannon v. Maxwell, ubi supra." case last cited, a plaintiff in attachment, who While the jurisdiction of the courts of law had purchased lands under a sale made upon in allowing new trials was restricted to aphis judgment in the attachment proceedings, plications made during the term at which was decreed to reconvey the lands, upon the judgment had been entered, courts or proof that the judgment had been inequitably equity exercised their jurisdiction to afford obtained. The Court of Errors, on appeal, relief in such cases when the newly discoyered evidence had come to light too late to of the said ordinance," and thereupon gave permit an application to the law court. As judgment that the defendant forfeit and pay the Legislature has extended the jurisdiction to the city of Asbury Park the sum of $15 of the law courts to grant new trials after penalty for said violation. the expiration of the terms, this court has An examination of the ordinance, as set further withdrawn from the exercise of its out in the complaint, shows that section 1, jurisdiction in that regard. Wolcott v. Jack- subd. “h,” of the ordinance, could be violatson, 52 N. J. Eq. 387, 28 Atl, 1045; 2 Gen. ed otherwise than by engaging in the busiSt. p. 2589, 8 328.

ness of carrying passengers for hire, with a There are statements in the bill to the ef- stage drawn by two horses, without a lifect that the defendant company has volun- cense, and consequently the adjudication of tarily dissolved, and the other defendants the justice fails to show that the defendant are made parties as being the stockholders was found guilty of the specific charge made and officers of the company at its dissolu- against him. The proceedings before the potion. These statements led to some question lice justice were summary, and hence the whether there was not an equity shown record of conviction, to be legal, must show which might require the bill to be held in with precision of what offense the defendant this court, notwithstanding the extended jur. was convicted. Keeler y. Milledge, 24 N. J. isdiction of the law courts. For if the new- Law, 142; Hoeberg v. Newton, 49 N. J. Law, ly discovered evidence proves sufficient to 617, 9 Atl. 751. defeat the action and require restoration of The conviction is set aside, with costs. the amount paid, this court might conveniently follow the assets into the hands of In the case of Asbury Park v. Josiah W. the defendants. But on examination of the Mariner, the complaint and conviction are in corporation act of 1896, I find that if the the same form as in Layton's case, above, judgment be opened, and upon a new trial

and for the same reason the conviction must a verdict and judgment pass for the defend- be set aside, with costs. ant in the action, an action will lie against the directors, in the name of the corporation

(69 N. J. L. 557) or in their own names, for debts owing by the corporation, and they are made jointly

DRUM V. DRUM et al. and severally responsible therefor to the (Supreme Court of New Jersey. June 8, 1903.) amount of moneys of the corporation which MARRIED WOMAN-ACTION AGAINST

HUSBAND. came to their hands.

1. d married woman living apart from her For both reasons, the demurrer must be

husband under a decree of divorce a mensa et sustained.

thoro is not enabled by our statutes to maintain an action at law against her husband.

(Syllabus by the Court.) (69 N. J. L. 559)

Appeal from District Court of Elizabeth


Action by Mary Ann Drum against Terence (Supreme Court of New Jersey. June 8, 1903.)

Drum and Thomas Drum. Judgment for SUMMARY PROCEEDINGS-RECORD OF CON

plaintiff, and defendants appeal. Reversed. VICTION.

Argued February term, 1903, before GAR1. In summary proceedings, the record of con- RISON, SWAYZE, and DIXON, JJ. viction must show with precision of what otfense the accused was convicted.

John F. Brown, for appellants. P. H. GIl(Syllabus by the Court.)

hooly, for respondent. Thomas Layton was convicted of violating an ordinance of the town of Asbury Park,

DIXON, J. In February, 1891, the court and Josiah W. Mariner was convicted of the

of chancery decreed a divorce a mensa et same offense, and both bring certiorari. Con

thoro between the plaintiff and her husband, victions set aside.

and directed the husband to pay alimony to Argued February term, 1903, before GAR

the plaintiff. The husband failing to do so, RISON, SWAYZE, and DIXON, JJ.

an attachment was issued out of the court of

chancery, directing the sheriff of Union counR. V. Lawrence, for prosecutor. John H.

ty to have the husband before the court on Hawkins, for defendants.

October 7, 1902, to answer for the contempt

involved in his disobedience, and authorizing DIXON, J. On a complaint made before

the sheriff to take a bond in the sum of $300, the police justice of Asbury Park that the

conditioned that the husband would appear defendant engaged in the business of carry

on that day, and would abide the further oring passengers for hire, with a stage drawn

der of the court. The husband, having been by two horses, within the limits of Asbury

arrested under the writ, gave the required Park, without having first obtained a license

bond, with a surety, but failed to appear on for that purpose, in violation of section 1 of a certain ordinance set out in the complaint,

the day designated. Thereupon the sheriff

assigned the bond to the wife, and she the police justice "adjudged the defendant guilty of the violation of section 1, subd. h,' 1. See Divorce, vol. 17, Cent. Dig. $ 810

brought suit upon it in the district court of per Company. Rule to show cause. DisElizabeth. That court rendered judgment | charged. in her favoç for $248.48, the amount of all- Argued February term, 1902, before the mony due to the plaintiff under the order of CHIEF JUSTICE and PITNEY and FORT, February, 1891. This appeal is taken to JJ. reverse that judgment.

William W. Watson, for plaintiff. John B. The difficulty in the way of supporting the Humphreys, for defendant. judgment is the fact that a wife is incapable of maintaining an action at law against her FORT, J. The plaintiff recovered a verbusband. Our statute enlarging the legal dict in the above-entitled cause for personal rights of married women (Gen. St. p. 2012) injuries. The character of the injuries was expressly saves the common-law inability of not controverted, nor is there any contention husband and wife to sue each other. Sec- | here that the damages awarded were excestion 14. The decree of divorce a mensa et sive. There are no errors found in the charge thoro between these parties did not affect or the refusals to charge of the learned trial their status of marriage. It merely justified justice. their separation. American Legion of Honor The only remaining question is whether V. Smith, 45 N. J. Eq. 466, 17 Atl. 770. the verdict should be set aside because While we have several statutes giving in- against the weight of the evidence. This is creased privileges to married women living a second trial of the issue in this cause, a apart from their husbands, none confers the former verdict in the cause having been set right to sue their spouses at law.

aside because against the weight of the eviThe appellants urge, also, that, this being dence. Brown v. Parchment Paper Co., 65 a bail bond, the suit upon it should be N. J. Law, 111, 46 Atl. 756. While in this brought in the court wherein the original ac- state there is no statute, or rule established tion was pending, in order that the court by decisions, limiting the number of times might exercise its equitable jurisdiction for the court may set aside a verdict and grant the relief of the bail. Such is the prevail- a new trial because it is against the weight ing rule with regard to ba il bonds given in of the evidence, still a second concurring suits at law. Florence v. Shumar, 34 N. J. verdict upon the same state of facts or on Law, 453. But the rule does not obtain in slightly varying evidence should cause the the court of chancery, because that court has court to hesitate before granting a third not jurisdiction of an ordinary right of ac- trial. The verdict upon a second trial should tion arising upon such a contract. On bonds not be set aside because against the weight given for appearance in the court of chan- of evidence unless the court is satisfied from cery (see Chancery Rules, p. 13), an action the evidence in the cause that it must have at law is maintainable, and the bail may ob- been the result of (1) the disregarding of the tain relief in proper cases by application to force of the whole range of the unimpeached the chancellor for an order restraining the testimony; or (2) the palpable failure to give prosecution of the bond. Bedaall v. Page, 2

proper force to the unimpeached evidence in Simons, 224; 1 Daniell's Chancery Practice, the cause offered by the party against whom 161. In the present case, the wife being the verdict is found; or (3) the giving to the the holder of the bond, she cannot sue upon testimony of the prevailing party a force to it at law, and the remedy which she is enti.

which, under the law and the facts, it was tled to must be sought in equity.

not entitled; or (4) the verdict must have The judgment should be reversed, and been controlled by prejudice, partiality, or judgment for the defendants be entered.

passion, and not based upon the weighing of the conflicting testimony in the cause.

Judge Allen, speaking for the Supreme (69 N. J. L. 474)

Court of Massachusetts, declares that: “In

this commonwealth there is no rule of law BROWN V. PATERSON PARCHMENT PAPER CO.

limiting the number of times that a judge (Supreme Court of New Jersey. June 8, 1903.)

may set aside a verdict as against the evi

dence. On the other hand, it has been recNEW TRIAL-SECOND VERDICT-INSUFFICIENCY OF EVIDENCE.

ognized that in an extraordinary case the 1. In this state there is no statute, or rule court may set aside any number of verdicts established by decisions, limiting the number

that might be returned." Clark V. Jenkins, of times the court may set aside a verdict and

162 Mass. 397, 38 N. E. 974. We would grant a new trial because the verdict is against the weight of the evidence, yet a second con- adopt the same rule, but think a second vercurring verdict upon the same state of facts or dict, to be set aside, should have in it some slightly varying evidence should cause the court

one, at least, of the objectionable elements to hesitate before granting a third trial. 2. When a second verdict may be set aside

above indicated. In some of the states there and a new trial granted.

are statutes limiting the right of the court (Syllabus by the Court.)

to set aside a second concurring verdict. In Action by Lawrence Brown, by his next

others, such limitation is imposed by a well

settled line of decisions. These cases are friend, against the Paterson Parchment Pa

gathered and discussed in Ency. Plead. & [1. See New Trial, vol. 37, Cent. Dig. $$ 162, 163. Prac. vol. 14, p. 993.

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