(116 A.) them. The strikers then resorted to the com- "The general rule," says the distinguished plainants' plant at Hoboken by sending some Chief Justice, "subject to but a few exceptions, of their number with circulars to distribute is, that if the facts constituting the claim of among the employees, calling their atten- the complainant for the immediate interposition tion to the fact of the Union Hill strike for of the court are controverted, under oath, by the defendant, the court will not interfere at "higher wages" and against "intolerable con- the initial stage of the cause." ditions," and urging them to attend a public meeting at a public hall at 107 Washington street, Hoboken, under the auspices of the International Association of Machinists, at which one of the Union Hill employees would be the principal speaker, and Bausch would also speak. This meeting was attended by over 300 men and women, only 12 of whom were identified with any labor union. The hall itself is located about one mile and a half from the Union Hill plant, in another municipality, and is located over six city blocks from the Hoboken plant. As a result of that and a subsequent meeting, another committee of complainants' workmen was appointed, to wait upon complainants, and to present a request for 10 per cent. increase in wages. As in the former instance, the complainants refused to confer with the committee. When this report was made to the employees at the meeting, a resolution was passed unanimously declaring a strike at the Hoboken plant. As a result of this declaration the employees who struck lingered about the streets adjacent to the plant, observing those who entered and left the place, for the purpose, as the bill of complaint alleges, of intimidating and coercing them to quit their employment. Affidavits accompany the bill which show that efforts at intimidation were practiced in many instances, and the learned Vice Chancellor then properly granted a preliminary injunction to suppress that illegality. George Jonas Glass Co. v. Glass Blowers' Ass'n., 77 N. J. Eq. 219, 79 Atl. 262, 41 L. R. A. (N. S.) 445. Instances of the application of this rule by this court have been frequent, the latest case being Brunetto v. Montclair, 87 N. J. Eq. 338, 100 Atl. 201, where Mr. Justice Trenchard, speaking for the court, reiterated the doctrine, and amplified it to the extent of declaring that A preliminary injunction "will not be granted merely to allay the fears and apprehensions of that the acts against which they ask protection individuals. They must also show the court are not only threatened, but will, in probability, be committed to their injury." The bill in this case charges that the active picketing was done by the other defendants, who have not appealed, and charges only against these two appellants an active propaganda, to induce the complainants' employees to join the labor union. Neither the association nor Bausch approached the plant, or were at all active in picketing. Upon that subject, under these decisions, we must accept the affidavit of Bausch as true. The injunction, therefore, as against these appealing defendants should not have been ordered at this stage of the proceedings. The appeal is directed to the provisions of the restraining order wherein it prohibits them, first, parading in the neighborhood, bearing placards, and, secondly, picketing the locus in quo. As to the first provision of the restraint prohibiting walking the streets, it is unnecessary to repeat the views I expressed in this court, at the last term, in the case of Bijur Motor Appliance Co. v. International Association of Machinists, 114 Atl. 802. The facts in this case, however, do not warrant such a provisional restraint, because neither the bill nor the affidavits show any such action upon the part of any of the appealing defendants; and the answering affidavit of Bausch shows that neither he nor the Association approached the premises nearer than the public halls. As against the Association, such a mandate would necessarily be futile, and must prove to be mere brutum fulmen, .because, not possessing the The restraining order is directed not only against the employees, but against Bausch and the labor organization, and this appeal is taken only by those two defendants. In their behalf Bausch presented an affidavit, denying the truth of the allegations of the bill as to himself and the association, and alleging that neither he nor the association did any picketing, and that the association had nothing to do with calling the strike, or formulating the demands of the employees. Upon the presentation of that issue of fact the injunction as against these two defend-legal characteristics of a corporation, it has ants should not have gone. neither a body to be cuffed, nor a soul to be The rule is settled since the determination consigned to an inferno. In any event it was of this court, speaking by Chief Justice simply the formal vehicle through which Beasley, in Citizens' Coach Co. v. Camden Bausch, as its representative, addressed the Horse R. R. Co., 29 N. J. Eq. 299, that, when employees, urging them to become members, the equity of the complainants' bill is dis- with which advice they apparently complied proved by the answer and affidavits, a pre-in large numbers. liminary injunction is not proper. In that Who was Valentine Bausch? When the case, as in this, the injunction went not exodus from the Union Hill plant began, the upon the allegations of the pleadings, but employees sought him as a Moses, to advise upon the sworn statements annexed thereto. and lead them from the hilltop, not into a One learned judge simply hurdled the inquiry by petitio principii, declaring that all picketing is illegal. It might as well be said that all illegal picketing is illegal, and the logical circle is thus complete. As well might it be declared that all debating or athletic sports or boxing exhibitions are illegal because some of the participants are occasionally injured as a result of the contests. This ipse dixit is occasionally followed as a precedent, to the utter abandonment of all consideration of our constitutional guaranties. The fact, of course, is as has been observed by Lord Bacon, that an opinion is as good as the reason upon which it is founded. Cessat ratione cessat ipsa lex. promised land, but into Hoboken, and then, act. There are, however, in this state, satisfactory and reasoned views in the light of personal rights, our legal fundamentals, and the constitutional guaranties which extend to every citizen, regardless of employment. Notable among these is that of Vice Chancellor Stevenson in Fletcher v. International Ass'n, etc., 55 Atl. 1077; Vice Chancellor Pitney in Frank v. Herold, 63 N. J. Eq. 443, 52 Atl. 152; Vice Chancellor Reed in Cumberland Co. v. Glass, etc., Ass'n, 59 N. J. Eq. 49, 46 Atl. 208; and Vice Chancellor Green in Mayer v. Journeymen's Ass'n, 47 N. J. Eq. 519, 20 Atl. 492. But since the Socialist body constitutes a legally existing political party in the nation and state, and since the dawn of history great men have associated with pharisees and sinners, Bausch seems to be not a fit subject for legal or political excoriation in these times. But the atmosphere of the bill is not sufficiently lurid without the introduction of another celebrity, Patrick Muso. If it were not for the meticulous description of his industrial activities contained in the bill, we would be inclined, from his terpsichorean nomenclature, to assume that he was a lineal product of a league of nations in which an apostle of the faith militant combined with the Muses in sponsoring him. But we are disillusioned in this respect by the information that the only distinction he enjoys is that "he is the business agent of Local 351, International Associa-means, any person or persons to enter into tion of Machinists," and that he was convicted for contumacious conduct by the Court of Chancery in another case, "and was sentenced to three months in the Mercer county jail." Facilis descensus Averni. The head and front of the offending of these men seems to be that they discussed and advised with the employees in neighboring halls the merits of their industrial demand, and the legal modus operandi for attaining it. This offense in the contemplation of the bill, seems to be comprehended in the generic offence of "picketing"; and generally they are enjoined from consulting, parading, visiting, or advising the employees against continuing in their employment. In this situation we are asked to define "picketing," so that counsel may be in a "picketing," so that counsel may be in a position to advise their clients regarding their constitutional rights as citizens. This manifestly we cannot attempt, since we must deal with each case upon the facts as it is presented. Some judges have attempted a definition, and as a result we are presented with an illogical and confusing medley of obiter dicta, that attempt to define the illegality of what The trend of legislation indicating the popular will is in the same direction. Thus we have the act of 1883, p. 36 (G. S. p. 2344), entitled, "An act relative to combining and encouraging other persons to combine," which makes it not unlawful for persons "to persuade, advise or encourage by peaceable entering into the employment of any person, any combination for or against leaving or persons or corporation." This act was held in the Jonas Glass Company Case to relieve such an act of the character of a conspiracy, so as to be the subject of indictment, but was held to afford no justification for an illegal attack upon the property of another. The so-called Clayton Act (chapter 323, § 6, Act Oct. 15, 1914; Barnes' Federal Code, § 7963 [U. S. Comp. St. § 8835f]) is to the same effect, and it is therein declared, inter alia: "Nor shall such organizations or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the anti-trust laws." President, now Chief Justice, Taft, when sitting as United States Circuit Judge in Phelan's Case (C. C.) 62 Fed. 803, declared: "The employees * * had the right to organize into or join a labor union which should take joint action as to their terms of employment. * * * The officers they appoint or any other person whom they choose to listen, may advise them as to the proper course to be taken *** in regard to their employment, or, if they choose to [appoint] any one, may order them, on pain of expulsion from the union, (116 A.) because any of the terms of their employment, neither impracticable nor unworkable; but are unsatisfactory." in an age of popular enlightenment, and in a social order where men are theoretically free This recital of a sensible, constitutional, and equal, and occupy a legal status of sovlegal rule of action in these industrial dis-ereignty, in which schools, libraries, and the putes requires no explanation, and no il daily press liberally disseminate an educalumination, and obviously eliminates the ne- tion which fructifies in an enlightened mancessity for a more definitive expression up- hood, regardless of avocation, the duration on the subject, either for courts or litigants. of such an archaic system may be estimated The recent adjudication by the United by the passive willingness of an enlightened States Supreme Court in the Tri-City Cen- electorate to tolerate it. For it is indubitatral Trades Council Case, referred to in the ble as a philosophic deduction from the progmajority opinion, simply elaborates and ress of law, as well as from the progress elucidates this conception of a sensible and of mankind, that an artificial legal status constitutional rôle, declared by the writer of which thus attempts to environ human enthe opinions in both cases. deavour, instead of palliating an existing evil, will. deplorable as it may seem, inevitably operate, like the deliverance in the Dred Scott Case, to precipitate a popular demand for a radical remedy, and the danger of it is, as history attests, that in the evolution "the man with the hoe" very often assumes the not inconspicuous role of a Samson manacled in the temple. The conclusion we have reached in this case, it will be observed, but serves to mark another step in the cycle of judicial legislation, which, beginning with an appropriate effort to curb agitation of a forcible character, has concluded with an edict which will be construed to put an end to peaceable and constitutional economic agitation. Thus, in Brennan v. United Hatters, 73 N. J. Law, 749, 65 Atl. 165, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 698, ignoring constitutional limitations peculiar to American government, and basing our conclusion upon a line of English cases, evolved from class conditions, in a land where no constitutional limitations exist, we conceded that the feudal right of property in the man, and his labor, still subsists in the hands of a master. The logical effect of that enunciation has been to prevent by injunction an organization of workingmen (1) from interviewing their colaborers on the way to work, or in their homes, or "in the neighborhood" of the plant; (2) from walking or parading on the public streets "in the neighborhood" of the plant; (3) from visiting colaborers in their homes or contributing to a fund to sustain indigent or sick agitators, or from contributing to a fund to continue a strike; (4) from loitering on the streets "in the neighborhood" of the plant; and (5) by this adjudication from hiring a public hall and there publicly discussing a workingman's grievances and thus we have Prometheus bound. Nothing further would seem to be necessary to complete the chaplet of judicial legislation, unless it be the invocation of the provisions of the Statute of Laborers (23 and 24 Edw. III) under which the laborer was effectually conscripted to the service of the master, and to that end was hounded as a Helot, and labeled with the brand of Cain. In every other walk of life the peaceful activities condemned by these adjudications are quiescently tolerated, if not approvingly recognized. In an age when the workingman occupied the legal status of a villain or serf, and thus became an appurtenance of the freehold, the legal procedure invoked here was The decree appealed from, so far as it seeks to enjoin the two appealing defendants from exercising the right of free speech in a public hall, should be reversed. GUMMERE, C. J. (dissenting). I concur in the view expressed in the majority opinion that the proofs before the Vice Chancellor fully justified his conclusion that the conduct of the defendants constituted an illegal interference with the complainant's property rights, and that the latter was entitled to an order restraining the defendants from further continuing such unlawful conduct. My dissent is based upon what seems to me to be the unwarranted scope of the order appealed from. It contains 15 different restraining provisions, the validity of most of which, as is pointed out in the majority opinion, is not challenged by the appellants. For the purpose of making plain the reason for my dissent, I need only refer to three of those involved in the appeal, namely, No. 4, No. 9, and No. 10. They are in the following words: "(4) From loitering or picketing in the the premises of the complainant, or near any streets or on the highways or public places near premises, with intent to procure the personal molestation and annoyance of persons employed or willing to be employed by complainant, or causing the employés of the complainant to refrain from or refuse to remain in the employ of complainant." "(9) From parading in the neighborhood of the plant of the complainant bearing placards or otherwise indicating that a strike is in progress at complainant's plant. "(10) From picketing the place of business of complainant." It is conceded in the majority opinion that picketing may or may not be lawful, depending on whether or not it has an immediate tendency to intimidation of the other party from further parading in the neighborhood to the controversy (or his employees or those of the complainant's plant, bearing placards seeking employment with him), or an im- containing a statement that a strike was in mediate tendency to interfere with their progress at that plant, without regard to right of free passage, such as the streets whether or not the parading shall be done afford, and prevent them from exercising in such a way as to have a tendency to inand enjoying that right as fully as do others timidate the complainant, its employees or who enjoy the same privilege. I concur in persons desiring employment with it, and this view, and approve the order appealed without regard to whether or not it would from, so far as it restrains such picketing have a tendency to interfere in any way as has the immediate tendency just indicat- with the full and free use and enjoyment of ed; and this the fourth provision of the their respective rights in the public streets. order does, as I read it. The tenth provi- It is not unlawful per se for a body of men sion, however, goes much further, and re- to march through the public streets in a strains the defendants absolutely from pick- quiet and orderly manner (unless prohibited eting, without regard to whether or not such by some municipal ordinance), even though action would have a tendency to intimidate the paraders carry banners or placards of the complainant or its employees or persons the character indicated in this provision of seeking employment with it, and without re- the order, unless the placards themselves gard to whether or not it would interfere naturally have a tendency to intimidate the with their full and free use and enjoyment owners of the plant, the employees who conof the public streets. That it has this effect tinue at work therein, or persons desirous of seems to me too plain for argument; for it seeking employment at such plant; and that is an entirely settled principle of construc- they have such a tendency is not shown by tion that, in ascertaining the meaning of a the affidavits in the case. judicial order or decree, every provision thereof is to be given effect-or, stated in another way, that no provision thereof is to be annulled by so construing it as to make it a mere repetition of an earlier provision therein, unless that purpose be made manifest by the words used. The fourth provision of the order deals with the matter of TRENCHARD and BLACK and Judge VAN unlawful picketing, and, under the rule of BUSKIRK concur in the views expressed in construction to which I have referred, the this opinion. tenth provision must be interpreted as dealing with a method of picketing not embraced within the restraint imposed by the earlier one; in other words, a method that is not unlawful. Considering the order appealed from too broad in the respects which I have indicated, I am constrained to dissent from the view of the majority of my Brethren, and vote to reverse it for the purpose of modification along the lines which I have expressed. I am authorized to state that Justices WALZ et al. v. OSER et al. (Court of Chancery of New It is to be borne in mind that the purpose of an injunction is not to punish for past offenses or violations of the law, but to pro-1. tect in the future those who have suffered from such violations against a continuance thereof. The learned Vice Chancellor, as I have already stated, properly found that the method of picketing adopted by the defend ants constituted an unlawful invasion of the rights of the complainant, of its employees, and of persons seeking employment with it, and he was entirely justified in directing an injunction preventing any further violation of those rights by a continuance of the unlawful methods which had been adopted and put in operation by the defendants. But he was not, as I think, justified in going further; that is, in restraining the defendants in the future from the exercise of their legal rights in a peaceful and orderly manner by prohibiting further picketing, even though done in a lawful way. Mortgages to equities. 1922.) (93 N. J. Eq. 280) (No. 45/302.) Jersey. Jan. 4, 256-Assignee takes subject Under 3 Comp. St. 1910, p. 3418, § 31, the assignee of a mortgage takes it subject to exthe duty of the assignee to inquire of the isting equities between the parties, and it is mortgagor as to his liability thereon. 2. Corporations 99(1)-Corporation act requires payment of capital stock in money. Corporation Act (2 Comp. St. 1910, p. 1630) § 48, requires that nothing but money shall be considered as payment of any part of the capital stock of a corporation organized under the act, except property necessary for its business, for which under section 49, now repealed by Act April 9, 1920 (P. L. p. 288), capital stock might be issued. 3. Mortgages 80-Equity will not assist in foreclosing mortgage procured by unfair advantage from 73 year old woman in early stage of senile dementia. And what I have indicated with relation Where an undertaker and his stock salesto the matter of picketing is also true with man, a preacher, formerly the woman's pastor, relation to the restraining of the defendants together with a lawyer, took undue advantage (116 A.) of a woman 73 years of age and procured from torney thereafter, was employed and paid by her a mortgage of $10,000 on her farm in ex- the company to act in its behalf in the securchange for stock of doubtful value in the un- ing of the bond and mortgage from Mrs. dertaker's company, and she was in the early Oser, and continued to act in the capacity of stages of senile dementia at the time, equity will not aid in foreclosing the mortgage in be- attorney for the company for a long time half of the parties who gained this unfair ad- after the bond and mortgage were obtained. vantage. Suit to foreclose a mortgage by Dora Walz and others against Elizabeth Oser and others. Dismissed. Prior to the time when the bond and mortgage were obtained from Mrs. Oser she was importuned by both Necker and Groenert to mortgage the farm on which she and her adult children lived, and from which they Merritt Lane, of Newark, for complainants. gained their livelihood, for the stock in the Randolph Perkins, of Jersey City, for de-Necker corporation, which was then in financial straits, heavily incumbered, and with some of its paper having gone to protest. fendants. LEWIS, V. C. This is a bill to foreclose Notwithstanding that condition, it was repa mortgage given by Elizabeth Oser to Wil-resented to Mrs. Oser that the company's liam Necker, Inc., a corporation of the state property was free of incumbrance, and that of New Jersey, dated August 1, 1914, given to it was not in debt. The Osers were very poor secure a bond of even date therewith, condi- and had worked for years to acquire the tioned for the payment of $10,000 on August farm on which they lived. Mrs. Oser had no 1, 1919, or sooner, at the option of the ob- independent advice, not even from her chilligor, with interest thereon at 5 per cent. per dren, who were kept in ignorance of the perannum. The mortgage covered a farm near suasions brought to bear upon her. Bergenfield, Bergen county, N. J. At the time of the execution and delivery of the bond and mortgage the mortgagor, a widow, was over 73 years of age. She was Germanborn and could not read or write the English language. The ostensible consideration for the mortgage was capital stock of the par value of $10,000 of the mortgagee, William Necker, Inc., a corporation engaged in the business of "undertaker" at Union Hill, Hudson county, and vicinity. William Necker was the dominating factor in the corporation, and appears to have been aggressive both in financing it and in conducting its ordinary activities. As a part of the business organization, the Necker corporation had in its employ the Reverend Mr. Groenert, who had previously been the pastor of the church which Mrs. Oser attended, and who was on the most close and confidential relations with her. He called her "Mother," and she regarded him as a son, and he testified that she had "every confidence" in him. As an employee of the Necker corporation, Groenert was engaged in selling its capital stock, and also in the preaching of funeral sermons in connection with the company's business of conducting funerals. He was designated as the "chaplain." At the time of the execution of the bond and mortgage Groenert was no longer the pastor of the church which Mrs. Oser attended, but his influence over her still remained. The bond and mortgage were witnessed by Edward Hollander, an attorney at law of this state, who also took the acknowledgment of Mrs. Oser to the mortgage, as a master in chancery. Hollander was also the attorney for the Necker Company at the time it was incorporated, and actually conducted its incorporation. He continued to act as its at116 A.-2 Furthermore, I am satisfied from the evidence that at this time Mrs. Oser was at least in the early stages of senile dementia and utterly incapable of understanding the nature and effect of the transaction which she was thus persuaded to enter into. Within a comparatively short time thereafter she became entirely irresponsible and helpless. Hollander, the attorney for the company, remonstrated because of the persistent persuasion which had been brought to bear upon the old lady, although he did not interfere when the transaction was being consummated. He was evidently being paid by the company to take part in a transaction that he finally concluded he did not approve of. On that occasion Mrs. Oser did not seem to be able to comprehend what was going on, and they had to keep repeating to her what they wanted done. She seemed to forget it as soon as it was stated; and a short time later on it became necessary to revisit Mrs. Oser with the papers to rectify a clerical defect; and at that time she had no recollection. whatever of either Hollander or the mortgage, and Hollander had to be reintroduced to her. All of this clearly shows the condition into which her mental faculties had lapsed. The mortgage was recorded on August 14, 1914, and on September 25, 1914, the Necker Company assigned it to Lawrence Fagan for "one dollar and other valuable considerations." The testimony shows that Fagan held the mortgage for the Hoboken Printing & Publishing Company, to which the Necker Company was heavily indebted. Contemporaneously therewith, however, the Necker Company gave to the Printing Company its note to cover this amount, with several individual indorsers, who are still liable on |