MISCELLANY

NEW CHANCERY RULE.

The Chancery Rules have been supplemented by the addition of a new rule numbered 165a, promulgated January 6, 1922, as follows:

165a. All pleadings, proofs and other papers presented to, and all orders and decrees signed by the Chancellor or a Vice-Chancellor or Advisory Master at the State House in Trenton, shall be forthwith filed with the clerk; and all such which shall be so presented and signed at chambers or elsewhere shall be marked filed by the Chancellor or Vice-Chancellor or Advisory Master (which need only be over the initials of his name and office, and may be done by his official stenographer or sergeant-at-arms at his direction), and all such papers shall be retained by the Chancellor or Vice-Chancellor or Advisory Master and delivered or forwarded by him, or at his direction, to the clerk with all convenient speed.

SUPPLEMENTARY PROCEEDINGS.

Attention has been called to the Bar of Bergen county by Mr. Justice Parker to a laxity of practice in relation to supplementary proceedings in cases of judgment and execution, and, as the matter should interest the Bar of the State generally we give, herewith, what has been spread before the Bergen attorneys:

“1. Originally an attorney or agent could not make the affidavit. Westfall v. Dunning, 50 N. J. L. 459. This was changed by statute. P. L. 1890, p. 185. But it should appear as one of the direct statements in the affidavit that the attorney is the attorney, i. e., “J. S., being duly sworn, says that he is the attorney herein for A. B. the plaintiff,” and not merely, “J. S., attorney for the plaintiff, being duly sworn,” which is a mere appositive and not a definite statement.

“2. Such affidavits frequently say: “that he has read the foregoing petition, and that the statements thereof so far as they relate to his own acts are true, and so far as they relate to the acts of others he believes them to be true.” This, it would seem, is not a compliance with Section 24 of the Executions Act. Such an affidavit in Chancery was considered in Barr v. Voorhees, 55 Eq. 561, and held sufficient for an order for discovery, but not for an injunctive order. But it is to be noted that this was under Section 90 of the Chancery Act of 1875 (Rev. 121; G. S. 1895, p. 389) which reads “that he believes the contents thereof are true,” whereas, Section 24 of the Executions Act requires the creditor or his agent to verify the petition, in which he shall state the amount due on the execution, the return by the officer, and his belief that the creditor has assets, etc. The belief is, therefore, restricted to the debtor’s assets and does not apply to the recovery of the judgment or the issue or return of execution. As to these facts, the late Chief Justice Depue said he doubted the sufficiency (at law) of such an allegation. 10 N. J. L. J. 223-4; Frankel v. Miner, 10 N. J. L. J. 341.

“There is no difficulty about an attorney deposing from personal knowledge that a judgment was entered, and execution issued and returned, as these things are matters of record; and as Chief Justice Beasley said in Westfall v. Dunning, 50 N. J. L. 461 already cited: “It is obvious that such a statement could be safely made by anyone who was possessed of the loosest information,” etc. He was there speaking of verifying the belief of the creditor; under the present act the belief of the attorney may do as well, but the criticism seems applicable to the other allegations also.

“The printed forms in Jeffery and on some of the law blanks are open to criticism in the above respects, and debtors should not be hauled before Commissioners for examination unless the statute is complied with.”

ACCIDENT TO MRS. EMERY.

Mrs. John R. Emery, widow of the late Vice-Chancellor Emery, while traveling with friends in Algiers, met with an automobile accident about Feb. 12th. The automobile turned over on the edge of a mine shaft, and it is stated she sustained a fracture of both arms. She went abroad Oct. 8th.

DEATH OF NEWARK’S MAYOR.

Mayor Alexander Archibald, of Newark, died on Feb. 11th, after an operation for a pressure on the brain nerves. He is said to have been the first Mayor of Newark to die while in office. He was born in Edinburgh, Scotland, December 13, 1869; was three years of age when his parents came to America. He was a silverware manufacturer in Newark. He was elected to the Council of Newark in 1910; became City Clerk in 1914, and in 1917 was elected City Commissioner and became Mayor. He was a Democrat and was talked of as a candidate for Governor. His funeral was large and observed generally throughout the city.

HUMOR OF THE LAW.

A Memphis lawyer entered his condemned client’s cell: “Well,” he said, “good news at last!”

“A reprieve?” exclaimed the prisoner eagerly.

“No, but your uncle has died leaving you $5,000 and you can go to your fate with the satisfying feeling that the noble efforts of your lawyer in your behalf will not go unrewarded.”

GOVERNOR’S APPOINTMENTS.

Adam O. Robbins, of Flemington, Common Pleas Judge of Hunterdon county in place of George K. Large.

Henry E. Newman, of Lakewood, Common Pleas Judge of Ocean county in place of William H. Jeffrey.

Marshall Miller, of Bloomsbury, Prosecutor of the Pleas for Hunterdon county in place of Harry J. Able.

Wilfred H. Jayne, Jr., Prosecutor of the Pleas for Ocean county in place of Richard C. Plumer.

Mahlon Margerum, member of the State Board of Taxes and Assessment.

J. Harry Foley, Secretary to Governor Edwards, State Superintendent of Weights and Measures.

Joseph A. Delaney, of Paterson, Common Pleas Judge in place of William W. Watson.

Joseph F. Autenreith, of Jersey City, in place of President John J. Treacy, resigned, on Public Utilities Commission.

Austin H. Swackhamer, of Woodbury, Judge of Gloucester Common Pleas, in place of Francis B. Davis.

BOOK RECEIVED.

The Nature of the Judicial Process By Benjamin N. Cardozo, New Haven: Yale University Press, 1821.

This book is especially welcome just now, after reading Judge Cardozo’s article in the December number of the “Harvard Law Review,” entitled “A Ministry of Justice,” which shows that his study of the nature of the judicial process has led him to seek for practical means to correct the errors that have crept into the law in the application of legal principles. This article in the “Harvard Law Review” is in itself the result of his study during his long experience on the Bench of the problem he deals with in these lectures on the nature of the judicial process. The book consists of four lectures delivered in the William L. Storrs’ lecture series in the Law School of Yale University, 1921. The titles of the lectures suggest the scope of his inquiry. They include: The Method of Philosophy; The Methods of History, Tradition and Sociology; the Judge as a Legislator; Adherence to Precedent; The Subconscious Element in the Judicial Process.

“Any Judge,” he says, “one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth.” In telling of the study of precedents in arriving at the rule of law to be applied to the decision of cases, he takes up, first, in the introduction, the method of philosophy and inquiries, in what proportions different sources of information shall be allowed to contribute to the result. If a precedent is applicable, when shall he refuse to follow it, and if no precedent is applicable, how does he reach the rule that will make a precedent for the future? “If,” he says, “I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare; by my own or the common standards of justice or morals?” And again, he says: “The first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books. I do not mean that the precedents are ultimate sources of the law, supplying the sole equipment for the legal armory, the sole tools, to borrow Maitland’s phrase, ‘in the legal smithy.’ Back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn.”

In the lecture on the methods of History, Tradition and Sociology, he shows how the method of Philosophy comes in competition with other tendencies which find their outlets in other methods. The tendency of a principle to expand itself to the limit of its logic may be counteracted by the tendency to confine itself within the limits of its history. “Very often,” he says, quoting Justice Holmes, “the effect of history is to make the path of logic clear. History, in illuminating the past, illuminates the present, illuminates the future.”

The law of real property supplies the readiest example of a field where there can be no progress without history, and where “a page of history,” to quote Holmes again, “is worth a volume of logic.”

He refers to leading examples of cases in which history has moulded the rules established by precedents and customs, and how the Law Merchant has not been moulded into a code, but has been expanded and enlarged to meet the wants of trade, and how the course of dealing to be followed is defined by the customs, or, more properly speaking, the usages of a particular trade, or market, or profession, and the natural and spontaneous evolutions of habit fix the limitation of right and wrong.

The law of real estate is taken merely as an example. Maitland, Holmes, Pollock and Pound, and many others, have pointed out the historical origins and development in the forms of action, the law of pleading, the law of contract, and the law of torts. The historic influences are strong in some departments of the law, and in others larger and fundamental conceptions tend to control the judicial mind, and there is a tendency to harmony of the law of different countries.

From History and Philosophy and custom he passes to the power of Social Justice, which he says is the force that in our day is becoming the greatest of the directive forces of the law. It is by the way of history and tradition that he comes to the method of Sociology. It is by the common law method of applying old principles to new conditions that Courts have been able to preserve the continuity of the law in changing conditions.

Among the leading cases cited is the Bakeries case, Lochner v. New York, 198 U. S. 45, wherein Judge Cardozo suggested that in this decision the dissenting opinion of Justice Holmes was the beginning of a new point of view in the dealing with the social welfare, which, he said, has since written itself into law. Justice Holmes made the remark, “The Fourteenth Amendment does not enact Herbert Spencer’s Social Status,” and Judge Cardozo cites later cases in the Supreme Court to the effect that “A constitution is not intended to embody a particular economic theory, whether of paternalism ... or of laissez faire.” It was by careful research of the effect of long hours of work for women that the change of opinion was brought about.

There is a short and very interesting lecture on precedents that are of doubtful value questioning what ought to be done with them. He quotes President Roosevelt’s message to Congress, December 8, 1908, in which he says: “The chief lawmakers in our country may be, and often are, the Judges, because they are the final seal of authority.... The decisions of the Courts on economic and social questions depend upon their economic and social philosophy; and, for the peaceful progress of our people during the Twentieth century, we shall owe most to those Judges who hold a Twentieth century economic and social philosophy and not a long and out-grown philosophy which was itself the product of primitive economic conditions.” This aroused at the time, he says, a storm of criticism and betrayed ignorance of the nature of the judicial process, but the author said he had no quarrel with the doctrine that Judges ought to be in sympathy with the spirit of their times. Yet this does carry us very far upon our road to the truth. The spirit of the age, as it is revealed to each of us, is only too often only the spirit of the group in which the accidents of birth, or education, or fellowship have given us a place. No effort or revolution of mind will overthrow utterly and at all times the empire of these unconscious loyalties.

The relation of the law to the economic and social progress is of great importance at this time, and it is well for us to have the help of this thoughtful and suggestive discussion by an experienced and conscientious Judge.

E. Q. K.

OBITUARIES.

Mr. Thomas W. Randall

Mr. Thomas William Randall, long prominent as a lawyer in Paterson, died at his residence at Upper Preakness, a few miles from that city, on Feb. 9, 1922, after a long illness. Up until a few days of his death he expected to live at least through the coming Summer, but the final end came with little warning.

Mr. Randall was born at Slough, in Buckinghamshire, England, about twenty miles from London, near the historic Windsor Castle and famous Stoke Pogis church, on June 24, 1853, and is a descendant of some of the most substantial and oldest families in that locality. He arrived in the United States, with his parents, on June 8, 1866, sailing from London, and resided first in Franklin township, Bergen county, and later at Hawthorne, in Passaic county, until he entered upon the study of his profession. He first studied law in the office of Judge Hopper, in Paterson, and afterwards with Messrs. Pennington & DeWitt, of Newark, and also attended the Columbia Law School in New York. He was admitted to the New Jersey Bar at the June Term of the Supreme Court in 1877, and, after spending some time abroad, came to Paterson and entered upon the practice of law, in which he was actively engaged ever after until his last illness. He became a counselor at the February Term, 1889.

Mr. Randall took no active part in politics, and never held a political office; he had no liking for mere partisanship. His practice was large in the Orphans’ Court and in Chancery proceedings, as he settled many estates. He was a Special Master of the Court of Chancery and as such many matters of reference were heard by him, and always with promptness and efficiency. He was also a Supreme Court Commissioner. He was counsel for many of the old Passaic families and for various corporations. In the great Paterson fire he lost every thing in his office except what was in his safe. He was an extensive reader of good books and had an excellent memory, a refined taste and the best of habits. He had none of the common vices of the day.

For many years Mr. Randall was a member of the Second Presbyterian Church. He served there on the Board of Trustees and was also a member of the Session. Mr. Randall served the Second Church in a legal capacity without cost to the congregation and was always glad to give legal advice to the poor in need of it. He also served for many years on the Board of Trustees of the New Jersey Presbytery and was known by every clergyman in that Presbyterian body. He was seldom absent at a stated meeting.

Mr. Randall was also the recognized friend of the Young Men’s Christian Association and his services in legal transactions were also at the disposal of the Board of Managers. He was counsel for the Young Women’s Christian Association and served as a member of the Investment Committee, with other prominent men of the city.

When in 1886 the people of the People’s Park District appealed to the late Dr. Charles D. Shaw and the elders of the Second Presbyterian Church for the establishment of a Sunday School in that district of the city, Mr. Randall was one of the most interested members of the Session in the movement to that end. Through the aid extended on behalf of the plan the Sunday School was opened a few weeks after the request was considered, and Mr. Randall became the superintendent. He frequently referred to that service as one of the happy experiences of his life. Later the school movement grew into the establishment of the Madison Avenue Presbyterian Church, now one of the most thriving congregations in the city, under the pastorate of the Rev. Franklin J. Miller. Mr. Randall frequently visited the People’s Park church and school to note the progress of the work he had a prominent part in starting. He was also interested in the St. Augustine Presbyterian Church, and in establishing headquarters for the colored men on Governor street.

Mr. Randall was a Christian citizen and was concerned in the welfare of Paterson. He was a member of the Passaic County Bar Association, a director of the Paterson Building and Loan Association, and was identified with the old Board of Trade. When the centennial celebration of Paterson was held in 1892 he was one of the hundred prominent men of the city selected to plan for that big event.

For several years before his death Mr. Randall was a member of the Church of the Redeemer.

Mr. Randall was specially fond of his native England, and made various journeys to that county. The Editor of this Journal has special cause to know of his interest in travel and fine qualities as a traveler, having been in his company abroad in 1898, 1903, 1907 and 1910, in some of which occasions he extended his trip to France, Switzerland, Italy, Germany and Holland; also to Ireland and Scotland. In 1910 he saw the Passion Play. He was also a frequent visitor to Lake Mohonk. From its beginning he was a patron and valued friend of this Journal, frequently sending to it copies of legal articles from English newspapers and occasionally contributing to its pages. The article we shall publish in our next issue, entitled “A Letter to Portia,” was received from him only a few days before his death, as were some notes concerning the death of his friend, Mr. Robert Hopper, also of the Paterson Bar.

In 1879 Mr. Randall married Miss Jennie S. Perry, a well known and highly esteemed teacher in the Paterson Public Schools, and at one time principal of School Number Two. Mrs. Randall died in 1912. There survives one son, Edmund Brown Randall, who is now the Judge of the Paterson District Court. A brother of Thomas W., Mr. Richard Randall, also a member of the Paterson Bar, died Oct. 16, 1913.

Col. E. Livingston Price

Colonel Edward Livingston Price, for 56 years past a member of the Essex County Bar, died at his home, 112 Bruen street, Newark, on February 4, from a heart attack, after an illness of about one year.

Colonel Price was born in New York City Dec. 20, 1844, being a brother to former Governor Rodman M. Price, and a son of Francis and Maria Louisa (Hart) Price of New York City. He received his education at Dr. Cattell’s Edgehill School, Princeton; Dr. Woodhull’s School, Freehold, and Dr. John F. Pingry’s School, then in Newark and now in Elizabeth. He would have gone to college had it not been for the outbreak of the Civil War. He entered the Union Army in April, 1861, when he was sixteen, as Second Lieutenant of Company E, 74th Regiment, New York Volunteers, having been unable to get a commission in New Jersey. Shortly afterward he was promoted to First Lieutenant. In this capacity he served from July, 1861, to April, 1862, when Major General Hooker placed him on his personal staff as Ordinance officer of the Third Army Corps, “Hooker’s Division.” As Ordinance officer he served at the siege of Yorktown, Va., and during the whole of the peninsular campaign. In August, 1862, he became Major of his old Regiment, the 74th New York, which he commanded through Pope’s campaign in Virginia, in the battles of Bristow Station, Second Manassas and Chantilly. His promotion to the Colonelcy of the 145th New York Volunteers took place on February 18, 1863. He served with this Regiment until January, 1864, taking part in the battles of Chancellorsville and Gettysburg.

At the end of the War he studied law with the late U. S. Justice Joseph Bradley, and was admitted as a New Jersey attorney at the June Term, 1866, but did not become counselor until February, 1879. He also became admitted to the various United States Courts. He became, in Newark, an active lawyer not only but a strong political speaker and manager, and was long chairman of the Essex County Democratic Committee and, for a time, of the State Democratic Committee. His ability as an organizer and his forcefulness as a speaker made him a powerful factor in moulding sentiment in party conventions. His tall figure and military bearing added their effect. In the latter years of his political activity he was familiarly referred to as the “Old War Horse of the Democracy.” As a lawyer he ranked high in municipal practice. He was counsel for the city of Newark and various outlying townships and for many of the Boards in Newark.

In 1865, before he became of age, he accepted a nomination for Assembly from Essex county and was sworn into office just after he rounded his twenty-first year. He was re-elected in 1867. As a legislator he applied his active intelligence to a study of the needs of his constituents and of the State in general and was the author of many laws now on the statute books. In later life Colonel Price bought a farm near Branchville, Sussex county, and spent much of his time there.

On June 1, 1864, Colonel Price married Emma, daughter of William and Mary Ann Marriott of Newark. On April 27, 1887, he was married again, the second wife being Frederica Theresa, daughter of Edward C. and Eva Elizabeth Eberhardt of Newark. His surviving children are a son, Frank M. Price, who lives at the Price home, and two daughters, Mrs. Frances Maria Josephine Spear, wife of Edwin M. Spear of Trenton, and Mrs. Marion White, a widow, also of Trenton. Edward Livingston Price, the eldest son, died three years ago. The eldest daughter, Marie Louise Jones, died in Kansas City, Mo.

Mr. Charles J. Roe

Mr. Charles J. Roe, of the Jersey City Bar, died in Faith Hospital, St. Petersburg, Florida, on Feb. 10th. For some time past he had not been in good health, and he went South the latter end of January to seek improvement. Soon after his arrival there he became worse and entered the hospital where he died. In Jersey City he had recently made his home, for himself and wife, in the Fairmount Hotel on the Boulevard.

Mr. Roe was the son of Charles Roe and Elizabeth Ann (Coult) Roe, and was born in Sussex county, Sept. 11, 1850. His father was the surrogate of that county for three terms (1863-'78) and then opened a drug store in Newton. The son obtained his preparatory education at Chester Institute and Newton Collegiate Institute; then entered Princeton College and was graduated therefrom in 1870, in the same class as Chief Justice Gummere and ex-Judge George M. Shipman of Belvidere. He then studied law with the late Levi Shepherd of Newton, and became an attorney at the June Term, 1873, and a counselor three years later. He practiced very successfully in Newton until 1894, a portion of the time having a law partner, Mr. Frank Shepherd; at the last named date, he removed to Jersey City. Recently he has had, as a law partner, J. Haviland Tompkins, the firm being Roe & Tompkins. Mr. Roe was an Advisory Master of the Court of Chancery and Supreme Court Commissioner. His practice was a general one, but he somewhat specialized in Chancery work. He was recognized as an able attorney, of scholarly instincts, being learned not only in his profession but in the arts and sciences. He knew some foreign languages and had traveled extensively in Europe as well as in this country.

Mr. Roe married Margaret, daughter of James F. and Sarah (Northrup) Martin, and is survived by his wife, and his sister, Mrs. John R. Hardin of Newark.