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a circular letter addressed by the proxy committee to the Stockholders of the COmpany which is copied and included in the complainants’ affidavits, and therefore relied upon by them, and stated also unequivocally in the affidavits filed on behalf of the defendants. If these facts were all the facts in the case, it Would be difficult to See hoW any injunction could lawfully issue to prevent the Voting of any or all of the shares for which the present administration holds the proxies. The COmplainants, however, allege that there are 52,430 shares for which the proxy committee holds proxies which have no right to he voted by proxy for the reason that there has been a severance of the right to vote from the Vested title to and OWnership of the Stock. It is Said that the defendantS, Or Some of them, borrowed Shares from Other shareholders and had them transferred on the company’s books in the names of perSons who were friendly to the management who then gave proxies to vote upon these shares, and that immediately thereafter the certifiCateS for Shares Were returned to the true owners. In the meantime the directors, by resolution, closed the transfer books so that it became impossible to have the Stock retranSferred into the names Of the OWners, and so the proxy committee are enabled to vote upon this stock at the annual meeting Without regard to the Wishes of the true owner. And the position is aggravated, the complainants say, by the fact that they have become the purchasers in the meantime of 460 shares of this very stock which now belongs to them and which they allege will be voted against them at the annual meeting, and that they have no recourse whatever. [2] I am of the opinion that it is unlawful, and a gross violation of the public policy of this State, to permit Or Contract for a Separation of the Voting power of corporate stock from its ownership. If a stockholder exeCutes a proxy, the perSon to Whom it runs is the Stockholder's agent, and he must Vote in accordance with the instructions given either openly or tacitly to him by the real owner of the shares. The agency is of Such a character that it may be abrogated by the appearance of the shareholder in person at the meeting, or by the execution of a Subsequent proxy which would cancel the former one; the whole situation being entirely under the COIntrol Of the Stockholder himself. The Situation as to the Stock complained Of in this case is very different. Here the stockholder has divested himself of the right to vote at Stockholders’ meetings and has Sold the right or given it away to persons who may vote it wholly in opposition to his wishes, and thus the power to appoint a proxy degenerates from a scheme for the best method of conducting the business of the company into a mere device for maintaining the Control. The real Stockholder, at the Stockholders’ meetings, has a right to have the other

proxy for the purpose of considering the wellbeing of the company. This result is not reached when the contest is one which is waged merely for control without regard to the best interests of the corporation. The authorities are Cone v. Russell, 48 N. J. Eq. 208, 21 Atl. 847; Guernsey v. Cook, 120 Mass. 501; Woodruff V. Wentworth, 133 Mass. 309; Warren v. Pim, 66 N. J. Eq. 3S2, 59 Atl. 773; White v. Thomas Inflatable Tire Co., 52 N. J. Eq. 178, 28 Atl. 75; Loewenthal V. Rubber Reclaiming Co., 52 N. J. Eq. 440, 28 Atl. 454. [1] If the case turned upon this point, I think it Would have to be decided in favor of the complainant, but it does not. If you deduct the 52,430 shares complained of from the 476,500 shares for which the management have proxies, there will be left proxies against which nothing is alleged for 424,070, Which is nearly 60,000 shares more than a mere majority. If, therefore, an injunction Should run against the voting of the 52,430 shares, it will cut no possible figure in the election for the reason above Stated. It is quite apparent that, if these figures are correct, there is nothing for an injunction to protect. There is no charge of fraud Or Collusion. On the part Of the present management, and there does not appear to be any irreparable injury growing out of the situation. It is Said that the board of directorS, by means of a proxy committee, have canvassed the whole field of stockholders for proxies running in the name of three of the Officers and directors of the company to vote for the present management, and that at the same time the same board has appointed three inspectors of election, Who are mere employés of the company and subject to the direction of the officers, and who therefore can have no independent judgment in making a decision upon the admission or rejection of a challenged vote, and that this amounts in law and in equity to appointing the present management to be judges in their own case. The practice referred to stands upon the ground of inveterate usage. It is Sustainable Only upon the ground that they hold the election fairly and honestly and neither commit or permit any fraud to be perpetrated upon the minority StockholderS. [4] Ordinarily Speaking, the tellerS Or inspectors of the election at a corporation meeting perform only ministerial duties and, notWithstanding the elaborate by-law on the Subject in this case, I do not see how they can be given judicial duties; they certainly cannot be given judicial duties which will override or in any Way interfere With an inquiry by the Supreme Court into the regularity of the company's action. [3] This view of the case makes it unnecessary for me to discuss the question of the appointment of a master in chancery to superintend the meeting, aS Was done by Judge Caldwell in Bartlett W. Gates (C. C.) 118 Fed. 66, and as was approved of by the SuN. J.) DAVIS W. Hestonville Railroad Co., 149 Pa. 70, 24 Atl. 88, 15 L. R. A. 665; but I am constrained to say that in my opinion the cases called to my attention on behalf of the complainants in this connectio do not go to the extent claimed. Chancellor McGill, in Archer V. American Waterworks Co., 50 N. J. Eq. 33, 24 Atl. 508, evidently meant to Say that the power of the Court of Chancery to protect corporate elections would be exercised by means of injunctions, and such is undoubtedly the meaning of the opinion of Chancellor Pitney in Warren v. Pim, 66 N. J. Eq. 382, 59 Atl. 773. The statement made by Chancellor Runyon in Lehigh Coal & Navigation Co. V. Central Railroad Company of New Jersey, 35 N. J. Eq. 353, as to the exercise of the power of the court to provide for corporate elections, refers to the affairs Of a railroad COmpany which were being administered by the Court of Chancery by a receivership, which gave the Court Such control OVer the affairs Of the company that it had power to Order an election as part and parcel of its plan of management. The motion Will therefore be denied.

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1. APPEAL AND ERROR (§ 1191*)—REMITTITUR —TIME OF FILING. The remittitur from the Court of Errors and Appeals was dated March 6th, when the opinion was delivered, but the file mark indorsed thereon by the clerk of that court was April 24th, 13 days after the case was actually retried below. Held, that the reasonable inference was that, though the remittitur was ordered by the appellate court on March 6th, it was not filed in the clerk's office by the attorneys until April 24th, after the case was actually retried below. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4646; Dec. Dig. } 1191.*] 2. APPEAL AND ERRoR (§ 1187*)—ENTRY OF R E M ITT IT U R—JURISDICTION OF LOWER CourT-TIME OF ACQUIRING. Where the remittitur was not actually filed until April 24th, the lower court did not have power to retry the case on April 11th, though the remittitur was ordered by the appellate court on March 6th ; the record having been removed by the court of error, and the lower court having no jurisdiction till it is returned. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4642; Dec. Dig. § 1187.*]

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PALMER, 573 GUMMERE, C. J. [1, 2] This case was tried at the Camden circuit On April 11, 1911, in the absence of the defendant, and resulted in a verdict for the plaintiff. The case had been in the Court Of ErrorS and AppealS On a review of a judgment overruling a demurrer. 79 Atl. 273. The remittitur from the Court of Errors and Appeals bears date March 6, 1911; the file mark indorsed upon it by the clerk of the Court of Errors and Appeals, however, bears date April 24, 1911, 13 days after the trial at the circuit. The reasonable conclusion to be drawn from these variant dates is that, although the remittitur was ordered by the appellate court on the 6th day of March (that being the date upon which the opinion of that court was delivered in the case), the plaintiff's attorney failed to file the remittitur in the clerk’s Office until the 24th of April. On this assumption, the trial was premature, for the Writ of error removed the record into the court of review, and that record remained there until the remittitur was actually entered. Welch v. Brown, 42 N. J. LaW, 324. Moreover, under rule 39 of the Court of Errors and Appeals, the record is not permitted to be actually remitted to the court below until after the expiration of 10 days from the date of the entry of the remittitur, without a special Order of the court. Until the record Was returned, the court below was without power to try the case. For this reason, the rule to show cause Will be made absolute.

(78 N. J. E. 78) DAVIS V. PALMER. (Court of Chancery of New Jersey. Jan. 27, 1911.)

(Syllabus by the Court.)

1. PARTITION (§ 79*)—ACTIONS—MODE OF ACTUAL PARTITION. Partition Act (P. L. 1898, p. 666) $ 65, expressly empowers the Court of Chancery in its discretion to grant the desire of tenants in common who elect to have their shares set off in one parcel without partition inter sese, and where the complainant is one of six equal tenants in common of the lands in question, and the defendants comprise the other five cotenants and unite in an answer joining in the prayer of a bill that a commission issue to make partition, but expressly declaring their election to have their shares set off to them jointly, and praying that the interest of the complainant be set off to him in severalty, the answer should be submitted to the master on the reference to him of the other matters. [Ed. Note.—For other cases, see Partition, Cent. Dig. §§ 224, 225; Dec. Dig. § 79.*]

2. PARTITION (§ 77*)—ACTIONS—MoDE OF ACTUAH, PARTITION.

Where one party holds five shares, and the other party holds one share, the question is, not whether the land can be divided into six shares of equal value, but whether the land can be divided into two shares having the ratio of value of five to one; or, in other words, whether a portion can be set off which Will be onesixth the Value of the Whole tract Without prejudice to the owners, and without disregarding any equities of the two parties. [Ed. Note.—For other cases, see Partition, Cent. Dig. §§ 211–223; Dec. Dig. $ 77.*] 3. PARTITION (§ 78*)—ACTIONS—MODE OF ACTUAL PARTITION. The distribution by lot in such a case is impracticable, and not binding upon this court. [Ed. Note.—For other cases, see Partition, Cent. Dig. §§ 265–273; Dec. Dig. $ 78.*] 4. FORMER DECISION FOLLOWED. The practice approved and followed in Waln v. Meirs, 27 N. J. Eq. 351, 354, followed in this suit.

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

Bill in equity by Mark W. Davis against Emma L. Palmer for partition. Heard. On

motion to confirm the master's report. Decree entered. George P. Rust, for the motion. Frank

W. Hastings, Jr., and Frank P. McDermott, Opposed.

STEVENSON, V. C. Objection is made to confirming the master's report because he has reported that partition cannot be made without great prejudice to the owners, whereas it is insisted that actual partition can and ought to be made. All the parties were before the court and were represented by counsel on the argument of this motion, the one party contending that the master's report should be confirmed, and the premises should be sold, and the other party contending that the master's report should be set aside or disregarded. No application Was made to have the cause in any event sent back to the master for further Consideration, and there seems to be no reason Why the court should not dispose of the case in its present aspect without any further reference to a master.

1. The premises in question consist of a farm near Hasbrouck Heights, having a width of about 550 feet and a length of about 4,000 feet. The Pollifly road runs through the easterly end of this long, narroW farm. The Whole tract is adjacent to Similar lands Which are in the hands of real estate operators for “development,” and it is no longer capable of being advantageously applied to farming purposes. Its Value, about $1,000 an acre, shows that it cannot any longer be dealt with as a farm or as farm lands. The complainant Mark W. Davis is one of Six equal tenants in Common Of the above-mentioned farm. The defendants embrace the other five tenants in Com111011.

2. Having in view the shape of the land and the number of tenants in common, there Seem to be Very Strong groundS to Sustain the report of the master to the effect that this tract of farm land cannot be actually divided into six parts without great prejudice to the OWnerS. The main Scheme for division, which was the subject of examination and argument before the master, seems

to involve the dividing of this long, narrow strip of land, one end of which just projects beyond the road into Six Strips, each of which Would be less than 100 feet Wide and about 4,000 feet long. [1] 3. The reference, however, in this case was not the ordinary reference in an uncontested partition suit. The five owners who appear as defendantS unite in an anSWer joining in the prayer of the bill that a commission issue to make partition but expressly declaring their election to have their Shares Set Off to them jointly, and praying that the interest of the complainant be set off to him in severalty. This answer was or Should have been Submitted to the master; the reference having been made under rule 29. Probably the attention of the master WaS not Called to this anSWer, and he may have supposed that the reference was in the usual form in uncontested partition Suits. The depositions seem to have been taken upon the theory that any actual partition must be into six shares equal in value. 4. The rule in equity is Well Settled that where one tenant in common has improved a portion of the land Or has wasted a portion, or where one party owns a larger share than the others, the partition often must be made so as to recognize all equities, and a division into shares of equal value may be impracticable and inequitable. Polhemus V. Emson, 30 N. J. Eq. 405. [2] Where one party holds five shares and the other party holds one share, the question is, not Whether the land can be divided into Six Shares of equal Value, but Whether the land can be divided into two shares having the ratio of value of five to one. OtherWise Stated, the question is whether a portion can be set off which will be one-sixth the value of the Whole tract Without prejudice to the owners, and without disregarding any equities of the two parties. [3] The distribution of parcels by lot in Such a case, as Well as in many other cases, where equity requires particular portions to be assigned to particular parties, is impracticable, and the use of the lot is not obligatory upon the Court of Chancery. McMullin v. Doughty, 62 N. J. Eq. 252, 257, 258, 49 Atl. 914, affirmed 63 N. J. Eq. 800, 52 Atl. 1132; Dan. Ch. Pr. (6th Am. Ed.) 1156, 1158. 5. Our present partition act (P. L. 1898, p. 666, § 65) expressly empowers the Court of Chancery in its discretion to gratify the desire of tenants in common who elect to have their shares set off in one parcel Without partition inter Sese. No reaSOn has been suggested why the request of the five defendants set forth in their answer should not be granted. The master, as Stated above, apparently did not consider such request. Unless some facts are hereafter disclosed, which do not now appear, these five defendants Me.) WASHBURN V. UNITED should be treated as a single owner of an undivided five-SixthS Share. [4] 6. The practice approved and followed in Waln v. Meirs, 27 N. J. Eq. 351, 354, seems to be directly applicable to this case. A COmmission Will issue in the uSual form prescribed in that case, and, if the commisSioners find that they cannot Set Off to the COmplainant a parcel equal in Value to OneSixth the Value of the Whole tract Without prejudice to the owners, they will so report.

(79 N. J. E. 517) EARL v. EARL. (Court of Chancery of New Jersey. Nov. 3, 1911.)

(Syllabus by the Court.)

DIVORCE (§ 214*) – ALIMONY AND COUNSEL FEES—PRIMA FACIE CASE. When a wife, in a suit for divorce against her husband, petitions for alimony and counsel fee pendente lite, her sworn statement alone in proof of the alleged matrimonial offense is insufficient; for, in order to obtain preliminary relief, she must make a prima facie case, and, as a divorce in this state is never granted upon the uncorroborated testimony of the complaining party, a prima facie case is not made by her affidavit unsupported by other evidence. [Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 626–631; Dec. Dig. § 214.*] Bill by Irma Leigh Earl against Binney Woodward Earl for divorce. Application for alimony and counsel fee pendente lite. De

nied.

John H. Backes, for petitioner. Eckard P. Budd and Joseph H. Gaskill, for defendant.

WALKER, W. C. This is a cause for diVorce for alleged adultery On the part of the defendant. After instituting her Suit, the wife filed a petition for alimony and counsel fee pendente lite. On this application the only proof offered of the alleged matrimonial offense was the sworn statement of the wife. She testifies to facts, which, if true, point conclusively to the COmmission Of adultery by the husband. He resists the application for preliminary allowances and denies on Oath that he is guilty Of the Offense laid to his charge.

This is not a case in which the wife is required to preponderate in the proofs on the preliminary application in order to prevail, (as in the case of Suydam v. Suydam, 80 Atl. 1057), for she sues for divorce a vinculo in apparent good faith and is a favored suitor. But, nevertheless, in Order to entitle herself to alimony and counsel fee pendente lite, she must make a prima facie case, and the testimony of the injured party alone does not make a prima facie case in a suit for divorce. In this State a divorce is never

granted upon the uncorroborated testimony

of the complaining party. McShane V. McShane, 45 N. J. Eq. 341, 19 Atl. 465; Hires V. Hires, 61 N. J. Eq. 491, 48 Atl. 598; Gar

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cin v. Garcin, 62 N. J. Eq. 189, 50 Atl. 71. Therefore the oath of the petitioner alone is not a sufficient foundation for a decree, nor is it sufficient to entitle the petitioner to preliminary relief, for she must on that application at least show the court that she has Such a case as, if proved on final hearing, Will entitle her to the relief she seeks. And this, of course, is entirely aside from the defendant's denial.

In Streitwolf v. Streitwolf, 58 N. J. Eq. 570, at page 574, 43 Atl. 904, at page 906 (45 L. R. A. 842), Judge Adams, speaking for the Court of Errors and Appeals, said: “A husband is bound to Support his wife, though She is separated from him, unless she is in fault. When in apparent good faith she sues him for a divorce or for separation, and Sets forth a prima facie case, there is no preSumption that she is in fault. She is therefore entitled to alimony pendente lite.”

The motion for preliminary allowances must be denied; but, under the circumstances, the denial will be without prejudice to the renewal Of the application On Sufficient proof.

STATES CASUALTY CO.

(108 Me. 429) WASHBURN V. UNITED STATES CASUALTY CO.

(Supreme Judicial C# of Maine. Nov. 20, 191

1. INSURANCE (§ 145*)—CoNTRACT-ACCIDENT INSURANCE – RENEWAL – EVIDENCE—SUFFICIENCY. A general insurance agent, pursuant to a long course of dealing with decedent and under instructions “never to let a policy expire unless told to,” received a renewal receipt from an accident insurance company and attached it to decedent's policy, then in the agent's safe, charging the renewal premium to decedent, crediting the amount to the company, and attaching copy of the receipt to the policy register. Decedent intended to have the policy renewed, and understood that it had been. Held, that the policy was legally renewed. [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 276–291; Dec. Dig. § 145.*]

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

United States Casualty Company. On report. Judgment for plaintiff.

Assumpsit on an accident insurance policy for $5,000, issued to Henry Washburn, the husband of the plaintiff, and payable to the plaintiff, as beneficiary, in event of the death of the said Henry Washburn, “resulting from bodily injury effected by external, violent, and accidental means.” This cause has previously been before the law court on exceptions. See Washburn v. United States Casualty Company, 106 Me. 411, 76 Atl. 902. At the conclusion of the evidence in the Second trial, the case was reported to the law COurt for determination.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, J.J.

George W. Gower and Turner Buswell, for plaintiff. Merrill & Merrill, for defendant.

WHITEHOUSE, C. J. [1] This is a suit upon an accident insurance policy for $5,000 issued to Henry Washburn, payable to the plaintiff, as beneficiary, in the event of the death of the insured, “resulting from bodily injury effected by external, violent, and accidental means.” It is alleged that the insured came to his death on the 21st day of February, 1908, as the result of such a bodily injury Sustained on the 19th Of the same month, and in this action the plaintiff seeks to recover the amount of the indemnity for the loSS Of life aS Stipulated in the policy. The case has previously been before the law court on exceptions to the ruling of the presiding justice ordering a nonsuit. Washburn v. Casualty Company, 106 Me. 411, 76 Atl. 902. The exceptions were sustained, and the case now comes to the law Court a second time on a report of the evidence presented at the former trial and certain additional testimony introduced at the Second hearing. Upon so much of this evidence as is legally admissible, the law court will now finally determine all questions of laW and fact involved in the Case.

It Will be seen, from an examination of the former opinion in this case in 106 Me. 411, 76 Atl. 902, that the only question inVolved in the exceptions Which Was argued by counsel and considered by the court was, whether the original policy, which by its terms expired January 16, 1908, a month before the death of the insured, had been renewed according to the regulations and practice of the company, and the established course of business between its agent and the insured, so as to be legally in force at the time of the accident. It Was then the defendant's principal Contention that itS liability terminated with the expiration of the original policy. But the opinion holds that the evidence then before the Court Was Suf

Valid Contract of renewal had been made between the parties, and that the policy was in force at the time of the death of the inSured. A Careful examination of the additional evidence now before the court, in connection with the former testimony, fails to disclose any material fact tending in any degree to detract from or impair the force and effect of the original evidence before the court on exceptions. On the contrary, there is new and important evidence introduced by the plaintiff, which very materially strengthens the foundation upon which the former opinion was based, that the original policy had been legally renewed. ACCOrding to the former testimony, for 10 Or 15 years prior to the date of the policy in suit, Mr. Griffin, the general agent of the Company, had been intrusted With the entire charge of Mr. Washburn’s insurance business, and kept all of his policies in his safe in a pigeonhole devoted exclusively to that purpose. Mr. Griffin Stated that he had “explicit instructions” from Mr. Washburn “never to let a policy expire unless he was told to,” and that under that inStruction all of his policies had been renewed. It was contended in behalf of the defendant, however, that this instruction “newer to let a policy expire” must be restricted in its application to the then existing contracts, and that it could not properly be extended to include new contracts of insurance, like the one in question, that might afterward be made. It further appeared that about a month before January 16, 1908, the date named for the expiration of the original policy, according to the usual course of busineSS, Mr. Griffin received from the company a renewal receipt to continue the policy in force another year. Before the expiration of the policy Mr. Griffin duly countersigned this renewal receipt and attached it to the policy then in Mr. Washburn's pigeonhole in the safe, and January 16, 1908, charged the renewal premium of $25 to Washburn and credited the amount to the company, and also attached a copy of it to his policy register. It was in evidence that Mr. Washburn was never required by the agent to pay cash for a policy, but paid the premium only on presentation of a bill therefor, after the policy had been deposited in the pigeonhole of the agent's safe. [2] Indeed, When a policy is delivered without requiring payment, the presumption is that a credit was intended and the policy is valid. Miller v. Life Ins. Company, 12 Wall. 303, 20 L. Ed. 398. From the evidence then before the court, it satisfactorily appeared

that Mr. Griffin understood that he was ex

pected to renew this policy, and from the whole tenor of his evidence, and especially from his letter acknowledging the receipt of the plaintiff's proof of loss, it was manifest

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