ber of the board of directors.
the meetings of the corporation and partici-
pated in its business affairs. He was not
paid interest on his money, but was paid a
salary of $100 per month and dividends. I I
am satisfied by the evidence that he is the
bona fide holder of 40 shares of the capital
stock of the company.

He attended | said that the complainant has not been guilty of laches. A. Gould Harrison was in actual charge of the business, and the complainant claims to be in the dark as to the condition of its affairs. The books were kept in such manner as would necessarily make it difficult to ascertain the exact financial condition of the company without careful examination. The accounts are not intricate, but they are entangled. They, however, can be analyzed and explained. In such a case equity has jurisdiction, if the complainant's right to apply is established. Charges have been made that Harrison has been guilty of improper conduct in the management of the affairs of the corporation. He may be entirely innocent of these charges, but an accounting alone can establish that fact. I am satisfied that in this case the complainant is entitled to the relief he seeks. In what manner and by whom the account shall be stated, I shall determine at the time the application is made to me to settle the decree.

The bill sets up several alleged overdrafts on the part of the treasurer, Harrison. There is no doubt that at the time when Fish in 1903 acquired his stock Harrison had overdrawn his account to a considerable extent. It is undoubted, also, that when Fish became such stockholder he was informed of the practice of overdrawing, it being explained to him by Harrison, and some time in 1905 he was informed further by the defendant that he had drawn his salary, which up to this time amounted to $20 per week, and in addition thereto had overdrawn to the extent of $4,500. It was at this time that the complainant assented to the proposition that the salary be increased to $40 per week, and that the overdrafts be charged off and the defendant be relieved of responsibility for it. After this complainant appears to have taken a new stand. He says that he assented to no further overdrafts, although the evidence indicates that they continued; for in August, 1906, we find an overdraft of $1,000 above the salary, in August, 1908, an overdraft of $1,500 appears, and in 1909 about $1,000 drawn in excess of salary is shown. These were all overdrafts by the treasurer. The defendant claims that there was a clear

As to the second question involved in this controversy I am not satisfied that the Beyea stock was purchased with the funds of the corporation, and I shall not dispose of this issue until the account has been taken. Some further evidences of this transaction which may throw light upon it may develop upon the accounting. I feel satisfied that the brother of the defendant has told the truth about his part in the transaction. The money received from the purchase the defendant claims to have loaned to the company. The expert employed by the complainant fails to find an entry on the books showing the loan by Harrison, while he admits that the books do disclose that the company received $1,800 from some source or other. The defendant claims that he applied the money thus loaned to his purchase of the Beyea stock. However, I deem it advisable, under the circumstances, to retain the disposition of this question until an accounting has been had.

A decree will be advised in accordance with the views herein expressed

understanding between complainant and himself that the practice of overdrawing should continue, and it is urged by his counsel that the resolution of 1905 is strong corroborative evidence of the truth of their client's claim. While it appears from the testimony that Fish knew about some of the overdrafts-one at least-it being shown that he, Fish, wrote an entry in the minute book, page 40, immediately after one of these later resolutions, i. e., later than the resolution of 1905, he denies seeing the resolution, and says that he had no knowledge of these acts of Harrison, and that he never assented to the situation. In March, 1910, Fish complained of the management of the corporation and called a meeting. He alleges that he asked for an audit of the books, which was refus- (Court of Chancery of New Jersey. July 8, ed by the defendant. It is apparent that at this meeting the question of the overdrafts subsequent to 1905 and the general financial affairs of the corporation were a matter of serious controversy. After this meeting Fish brought his action in this court. It is urged that Fish, as president of the corporation and the holder of 40 shares of stock, could have asserted his position some time before, while he was in close touch with the affairs of the company, and thus have avoided lengthy litigation, still on the demurrer to the bill filed by the defendant the court has

(83 N. J. Eq. 390)

In re P.

1914.)

1. CONTEMPT (§ 27*) CIVIL CONTEMPT WHAT CONSTITUTES.

in a decree, after it has been signed by the It is a contempt for a solicitor to insert Chancellor, any provisions, though they are immaterial.

[Ed. Note.-For other cases, see Contempt, Cent. Dig. § 5'; Dec. Dig. § 27.*] 2. ATTORNEY AND CLIENT (§ 43*)-CONTEMPT-PUNISHMENT-DISBARMENT.

Where a solicitor inserted in a decree, after it had been signed by the Vice Chancellor, some rather immaterial provisions similar to others which had been stricken out, and inform

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[1] P. presented the draft of decree in person, and the Vice Chancellor struck out the concluding words "and the clerk of the county of *** * is hereby directed to can-ed by counsel in deliberately writing in the

Among the instances of contempt mention- letter, inclosing the solicitor's, I immediateed by Blackstone are:

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

"I am exceedingly sorry that Vice Chancellor feels that I have attempted to do anything in contradiction of the decree which he has advised, and that there has been any misunderstanding about the matter. Your let ter came as a complete surprised to me, and naturally I was very much perturbed over its contents."

"It must be perfectly obvious to you and al- [essary to have been shown before disbarment so to Vice Chancellor that I was not could follow? The evidence shows that the inintended to deceive the court, or to make any terlineation occurred in that part of the dealteration of the decree without the consent cree that undertook to locate or describe the of the Vice Chancellor. The words which I land involved in the decree; and the interlineadded were simply words which I considered ation caused the sentence in the decree as necessary to properly carry out my suggestion signed, 'County and State of Florida,' to read, to the Vice Chancellor, that a decree should be County of Putnam and State of Florida.' It entered which might be filed, and which would is apparent from the evidence, and from the fact operate as a cancellation of the mortgage, with- that the decree was in a case pending in Putout compelling the clerk to actually cancel the nam county, that the land involved therein, to mortgage on the record, and to which idea whose description the interlineation referred, did and view I thought the Vice Chancellor had in fact lay in the county of Putnam'; and agreed, and that he intended that I should have it is apparent, also from the evidence of the this relief. clerk, Frank Wright, that the land was otherwise sufficiently located or described without the words interlined; and from all this it is evident that the omission of the interlined words of Putnam' was a lapsus pennæ on the part of the draughtsman who prepared the decree, and that of right it was proper that they should have been put into the decree at the point in which they were interlined, prior to its presentation to the judge for his signature thereto. * * There was no proof that Mr. Fowler made this interlineation under the impression or belief that it added to or detracted from the substance or form of the decree, or was necwords interlined was so manifestly a clerical essary to give it effect. The omission of the oversight and mistake, and in the opinion of both the judge and the clerk of the court did not affect the description of the land or the decree either in form or substance, and the words interlined being such as the law would have supplied from the other contents of the decree, Mr. Fowler was actuated in making this interin considering the motive by which lineation, we might fairly presume that he did it under the impression that the judge would certainly consent to the correction of so palpable a clerical mistake that when made affected nothing either in form or substance, rather than from any evil design.

Subsequently the solicitor, appearing at chambers, was informed by me that I proposed to charge him with contempt of court, and I asked him if he desired to be arraigned on formal charges, or whether he would submit the matter on the facts above detailed. He chose the latter course, as well he might, for it is obvious that the facts speak for themselves. His only defense is a disclaimer of intentional wrongdoing. This, as a rule, is no excuse, especially where the facts constituting the contempt are admitted, or where a contempt is clearly apparent from the circumstances surrounding the commission of the act. 9 Cyc. 25. Disavowal of any intention to commit a contempt may, however, extenuate or even purge the contempt. Id. 26.

A case quite pertinent is that of State v. Finley, 30 Fla. 325, 11 South. 674, 18 L. R. A. 401, in which it was held:

* *

"We do not wish it to be understood that we are inclined to condone, palliate, countenance, decree of a court after it obtains the sanction of or excuse any manner of tampering with the the judge's signature, even to the crossing of a T or the dotting of an I therein; on the con"While the interlineation into a decree, aft- trary, we think that such a practice is higher it has received the judicial signature, of im-ly reprehensible, and deserves severe punishmaterial words patently omitted therefrom ment,, no matter how innocent or immaterial A proper through clerical oversight may not, in the ab- the alteration or change may be. sence of proof of a bad motive or fraudulent respect for the sanctity of the official judgments design in the attorney who perpetrates it, be and decrees of our courts demands this shall be cause for disbarment, still any manner of so, and in recognition of the sanctity of juditampering with the decree of a court after it cial decrees, our (Florida) chancery court rule receives the sanction of the judge's signature, 87 has been provided, requiring an order of no matter in how small a particular, and no matter how innocent or immaterial the alteration may be, is highly reprehensible, and deserves severe punishment. In recognition of the sanctity of judicial decrees, chancery court rule 87 (Florida) has been provided, requiring an order of the court for the correction of clerical mistakes therein, arising from any accidental slip or omission; and an attorney who attempts to accomplish correction otherwise should be dealt with summarily and severely."

the court for the correction of clerical mistakes in decrees arising from an accidental slip or omission. But when such an interference with a judicial decree is made unauthorizedly and incautiously, but without any bad motive or fraudulent design, it partakes more of the character of a contempt of the court than of that moral turpitude that stamps the perpetrator as being an unfit person to exercise the office of an attorney."

State v. Finley was a disbarment case; And the court, in the opinion, made the but the law as laid down by the court is following observations:

"As to the second charge, of interlining the words of Putnam' in the decree in chancery in the case of Wood v. Peterman et al., after it had been signed by the Chancellor, although it is denied by the relator that such interlineation was done subsequent to the signing of the decree, still we think that the proof, if not prejudiced, is quite sufficient to establish the fact that it was done subsequently to the signing of the decree. This fact being established the next question to be considered is: Does the evidence show that it was done with that fraudulent, corrupt, and bad motive that is nec

entirely apposite to a case of contempt involving facts of a similar nature.

It can hardly be said of the solicitor in the case at bar, as was said of the attorney in the Florida case, that there is no proof that the interlineation in our decree was made under the impression or belief that it added nothing to or detracted nothing from the substance or form of the decree.

P., the solicitor, as already mentioned, incorporated in his draft of decree as presented

appointed by the Chancellor. On May 27, 1914, the rule to show cause was discharged. On of June 3, 1913. Held, that the judgment nisi March 5, 1914, judgment final was entered as entered on June 3, 1913, bound the lands of which the judgment debtor was then seised, title to which subject to said lien passed to the receiver on June 10, 1913.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1329-1332, 1335, 1337; Dec. Dig. § 772.*]

3. RIGHT TO ISSUE EXECUTION ENTRY OF JUDGMENT NISI.

The cause of Erie Railway Co. v. Ackerson, 33 N. J. Law, page 33, followed.

4. CASE EXPLAINED.

to the Vice Chancellor a direction to the county clerk to cancel of record the mortgage in question. The Vice Chancellor deliberately struck out that provision, so that the decree read that the mortgage should be delivered up for cancellation, leaving the solicitor to accomplish the cancellation in the best way he could, with or without further litigation. The solicitor, after leaving the Vice Chancellor, and out of the presence of the court, deliberately wrote into the decree, over the Vice Chancellor's signature, a provision that the mortgage be canceled of record, hoping and expecting, doubtless, that The case of McNamara v. N, Y., L. E. & with that language in the decree he could in- W. R. R. Co., 56 N. J. Law, page 56, 28 Atl. duce the county clerk to make the cancella-313, explained. tion. If not, why did he incorporate such a provision in the decree, and why was he not content with the form in which the Vice Chancellor signed it? Nevertheless I am happy to say that I have been able to conclude, contrary to my original view, that the solicitor P. can be put within the later observation of the Florida court, where it says that, when an unauthorized interference with a judicial decree is made without bad motive or fraudulent design, it partakes more of the character of a contempt of court than of that moral turpitude that stamps the perpetrator as an unfit person for the office of attorney. Therefore I am enabled to reduce the offense of the solicitor before me from that which would provoke disbarment proceedings to an adjudication that he has been guilty of a contempt of court; and I so find and pronounce.

The decree will be restored to the form in which it was originally signed by the Vice Chancellor, and the matter of punishment of the solicitor will be reserved for further consideration.

(86 N. J. L. 13)

RUSSELL v. RUSSELL-ROBINSON CO. (Supreme Court of New Jersey. July 10, 1914.)

(Syllabus by the Court.)

1. EXECUTION (§ 7*)-JUDGMENT NISI-RIGHT TO ENTER.

Upon filing the circuit record and postea a judgment nisi may be entered upon which, notwithstanding a rule to show cause has been allowed, an execution may issue, which will, however, be rendered void if such rule to show cause be made absolute, but which, if such rule be discharged, and judgment final be entered as of the date of such judgment nisi, remains in full force as to lands of which the judgment debtor was seised at the time of the actual entry of such judgment nisi.

[Ed. Note. For other cases, see Execution, Cent. Dig. §§ 7-15, 17-20; Dec. Dig. § 7.*] 2. JUDGMENT (§ 772*)-ENTRY OF JUDGMENT NISI-LIEN.

On May 20, 1913, plaintiff obtained a verdict in an action in the Supreme Court. On May 27, 1913, a rule to show cause why this verdict should not be set aside was allowed. On June 3, 1913, judgment nisi was entered upon the postea. On June 10, 1913, a receiver of the defendant as an insolvent corporation was

Action by Rose Zamelsky, administratrix, against the Russell-Robinson Company and another. A judgment nisi was entered for plaintiff in the Supreme Court, and Frank P. Russell was appointed receiver for the defendant named. From an adverse determination of the receiver, the administratrix appealed to the Court of Chancery, which certified the proceedings to the Supreme Court, propounding a certain question. Question answered in opinion.

This is a proceeding under section 79 of the chancery act, which provides that the court of Chancery may send any matter of law to the Supreme Court for its opinion to be certified thereon. Pursuant to this statute an order was made in a cause pending in the Court of Chancery upon the advice of Vice Chancellor Stevens, who filed the following memorandum, in which the matter of law is stated and the question propounded:

This is an appeal of Rose Zamelsky, administratrix, from the determination of the receiv

er.

It appears that on June 3, 1913, on the filing of the postea in an action of tort, Mrs. Zamelsky obtained a rule for judgment, or judgment nisi, in the Supreme Court for $6,000. The verdict had been against the Russell-Robinson Company and Wm. L. Blanchard Company. A rule to show cause had, on May 27, 1913, been granted by the circuit judge, with the result that the Supreme Court in banc set aside the verdict against the Blanchard Company, and allowed it to stand against the Russell-Robinson Company.

The rule for judgment nisi (if such is may be called) was entered in the minutes of the Supreme Court in the words following:

"It is ordered that judgment be and hereby is entered in favor of plaintiff and against the defendant (the two companies designated in the title of the cause) for the sum of $6,000, besides costs to be taxed, nisi.

"Entered June 3, 1913, on motion of Kalisch & Kalisch, Attys.'

The form of the final judgment, as entered on the minutes, is as follows:

"Judgment entered this 5th day of March, A. D. 1914, as of June 3, 1913, for the sum of $6,000 damages and $74.34 costs.

"W. S. Gummere, C. J." Between the date of the rule for judgment nisi and judgment final the Russell-Robinson Company became and was adjudged insolvent by this court. A receiver was appointed on June 10, 1913. The company was at that ti:ne the owner of real estate from which the receiver has, by sale, realized $6,203.26. If the rule

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes