Perrine v. Broadway Bank.

of the order. If they will go before the master on Thursday, the 25th instant, at ten in the morning, and submit to an examination, as they should have done on the 29th day of March last, that fact will be taken into consideration on Wednesday, May 31st, 1893, at ten in the morning, when the defendants must appear in person before the court, at the chancery chambers in the city of Newark, to be punished for their contempt.

Mr. Frank Bergen, for the appellant.

Mr. John S. Voorhees, for the respondent.

BEASLEY, C. J.

On this appeal, but a single question is presented for solution.. The respondent having obtained a judgment, and an execution thereon having been returned unsatisfied, exhibited his bill in the court of chancery to compel the discovery by the appellant, the judgment debtor, of his property. By force of the statute (Rev. p. 121 § 90) the chancellor thereupon made an order requiring the appellant to appear and make discovery, on oath, concerning his property and things in action, before a master, at a time and place designated. Thereupon, a certified copy of this order was put in the hands of the sheriff for service, who, through the medium of an undersheriff, served the appellant by leaving a true copy of the order with him, but without showing him the original or in any manner intimating that he had it in his possession.

In this condition of things, the appellant, acting on the advice of counsel, did not attend before the master as directed, and, because of such failure, was cited by the respondent to appear and show cause before the vice-chancellor why he should not be adjudged to be in contempt. Upon hearing he was declared to have been contumacious, and was accordingly fined. The present appeal brings before us this sentence.

That the order in question was not served according to law, is not open to question. The practice on this head has been immemorially settled. The ancient and modern course of procedure

Perrine v. Broadway Bank.

was and is as follows: Upon an order of this nature being signed, it is to be filed, and a copy certified to as true by the clerk is then to be served on the party. These steps may, of course, be modified by the special direction of the chancellor, but in the absence of such substituted method the correct and only mode is that just stated. So far as is known, there has never been an approved departure from the rule.

In the present instance this inveterate and simple course was not taken. A copy of the order, attested by the clerk, was sent to the officer, and, instead of leaving it with the appellant, he copied it and left such copy. The paper thus left was not certified to in any mode, nor did the officer exhibit the copy in his hands.

The ground upon which the vice-chancellor concluded that the appellant had placed himself in a contumacious attitude with. respect to the court, was that the circumstances showed that he had no reason to doubt, and did not doubt, the authenticity of the copy of the order that was left with him, and that therefore it was his duty to obey it. The doctrine is thus expounded: "As a general rule, I think it may be safely said that when an order is made by a court requiring a party to a suit pending before it to do or to refrain from doing a particular thing, all that is required to impose the duty of obedience is that the order shall come to his knowledge in such manner that he knows what he is required to do or to refrain from doing, and as would lead a man of ordinary good sense to believe that the court had made it."

It is obvious that if such be the principle, then there is nothing like an established formula of practice in relation to these cases. The entire subject is in the air. Who can tell what will or will not be a sufficient service? The assurance of the lawyer of the party obtaining the order, that a paper purporting to be a transcript of the order, although entirely unauthenticated, would doubtless in most cases carry conviction of its genuineness. So unattested copies sent by mail would many times have the same effect. Under the prevalence of such a system the most deplorable laxity would soon prevail, and it is not therefore a matter

Perrine v. Broadway Bank.

of surprise that no authorities have been cited in its support. In the brief of counsel the service of orders of this nature are likened to the service of injunctions, and it is claimed that with respect to such procedures the rule propounded by the vice-chancellor has obtained. There can be no doubt that in certain junctures the usual rule requiring an exact service of injunctions has been relaxed; but such relaxations are applicable only to that form of such writs whereby the party is prohibited from pursuing a certain line of conduct; but such relaxations are the creatures of necessity, and therefore have no place in the regulating of mandatory injunctions. The expressions of judicial opinion on that subject in this state have all related to common injunctions, that is, writs containing an order not to do a particular thing, or series of things; they mark out deflections from the ordinary path, and are obviously the creatures of necessity and should not transcend the limits of such necessity. In Harvey v. Kauffman, 2 Beas. 398, Chancellor Green, with characteristic precision and accuracy, defines the usual practice touching the service of this process. He says: "To effect a regular service of an injunction, the writ itself, under the seal of the court, must be shown to the party against whom it issues, and a true copy thereof delivered to him." He then proceeds to show that in cases where such formal service cannot be made the court will direct a different and less direct method of notification to be pursued. This is the English and American practice. Endicott v. Mathis, 1 Stock. 114; Railway Company v. Johnson, 8 Stew. Eq. 422; Ashborne v. Tenant, 14 Ves. 136; 2 Ves. & B. 348 ; Skip v. Harwood, 3 Atk. 563, 567.

It will be observed that in this class of cases the rule enforced is, that the court will not suffer anyone willfully to defeat its jurisdiction over the subject it has in hand. It treats as punishable any attempt to frustrate its authority. But outside of the scope of such a purpose the court will not dispense with the strict service of its writ. None of our own adjudications appear to have gone beyond this limit; none of them have held that a party will be in contempt by disobeying an injunction irregularly served, when the subject of the writ has been left in statu quo,

Ashton v. Wilkinson.

so that the power of the court over it has not been impaired. It is obvious, therefore, that the rule in question would seldom or ever regulate the practice touching mandatory injunctions.

The result is that even if the principles pertinent to injunctions were deemed to be applicable to the order now in question, the appellant could not properly have been put in contempt by his refusal to obey it, for such refusal could in no wise interfere with the jurisdiction of the court over its subject. The entire effect of such recusancy was to procrastinate the hearing for a few days.

Let the decree appealed from be reversed.

For reversal-THE CHIEF-JUSTICE, LIPPINCOTT, MAGIE, REED, VAN SYCKEL, BOGERT, KRUEGER-7.

For affirmance-DIXON, GARRISON-2.

ANNA R. ASHTON et al., appellants,

v.

GEORGE WILKINSON et al., executors of the will of John P. Wakeman, deceased, respondents.

1. Interest upon a legacy commences to run when payment of the legacy is demandable.

2. When no time is fixed in the will for the payment of a legacy, it is demandable one year after the death of the testator.

3. If a legacy be payable after the happening of a contingency, it is demandable when the contingency happens, after a year from the testator's death.

4. W., by his will, directed that his wife should have power to, by her will, appoint the distribution of a certain sum from his estate. The wife survived W. three years, and then died, leaving a will, by which she appointed the distribution of the sum provided by his will.-Held, that the will of W. not having fixed a time for the payment of the sum, the payment was demandable by the wife's appointees immediately after the probate of her will.

Ashton v. Wilkinson.

Mr. George Holmes, with whom was Mr. Joseph A. Flannery, (of New York), for the appellants.

Mr. R. Wayne Parker, for the respondents.

On appeal from an order of the chancellor, who delivered the following opinion.

John P. Wakeman died in December, 1891. In his will, admitted to probate in the same month, after directing the payment of his debts and funeral expenses, appointing executors and giving them power to sell his real estate and giving the income of the entire estate to his wife for her life, he conferred this authority upon his wife:

"I hereby also authorize my said wife to convey by will, in such manner and for such purpose as she may deem best, the sum of fifty thousand dollars of my estate, which sum of fifty thousand dollars is in lieu of dower."

Then he disposed of the residue of his estate to others.

By a codicil to the will, he modified the provision for his wife by restricting the income she was to take to all the income from his estate, not exceeding $5,000, the excess over that sum to be capitalized and to go to the residue of the estate. He gave his wife certain chattels and the use of a house for her life, the executors not to have power to sell that house, except with her consent in writing.

These provisions he declared to be in lieu of dower.
Then he proceeded :

"Fifth. The amount which my said will authorized my wife to convey by her will, is hereby reduced from fifty thousand dollars to thirty thousand dollars."

Then he gave and bequeathed eleven legacies, aggregating $13,000, to be paid "without interest within one year after the decease of my wife," and made disposition of the residue of his estate to a number of persons named, share and share alike.