American Dock & Improvement Co. v. Trustees for the Support of the Public Schools , 36 N.J. Eq. 16 ( 1882 )

The Chancellor.

The receiver for the creditors and stockholders of the New Jersey West Line Railroad Company applies for leave to bring an action of ejectment to try the title to the land in question i.u this suit, or failing that, for an issue at law for the purpose. The form which the issue at law, where one is ordered in this court, shall take, whether it shall be a feigned issue or whether an action at law shall be instituted, is entirely within the discretion of the court, and such form will be adopted as will best conduce to the purposes of justice. In Gibbes v. Holmes, 10 Rich. Eq. 484, the court ordered that the question whether a bond was presumed to be paid to be tried by an action at law, to be instituted as of the date of the beginning of the suit in equity. While the act “ to compel the determination of claims to real estate in certain cases, and to quiet the title to the same” (Rev. pp. 1189, 1190), provides that on the application of either party to a suit brought under it, this court shall order an issue at law to try the title, the form of the issue is, as in other cases, in the discretion of this court, which will so mould it as best to effectuate the ends of justice. Where, as in this case, the defendant apprehends that he may be prejudiced or embarrassed, if not defeated, by the operation of the statute of limitations, if the ordinary practice be adhered to, and the bill should ultimately be dismissed for want of jurisdiction, or if there be any other substantial reason for doing so, another form, one that will protect him, will be adopted. In the case in hand, the receiver will be permitted to bring an action of ejectment, which, however, will be under the control of this court, as to the venue and in all other respects, in the same manner and to the same extent in all things that the issue would be, if in the usual' form.

A party has been held entitled to an issue as of course in a question of insanity, Myatt v. Walker, 44 III. 435; Pankey v. Raum, 51 III. 88; Williamson v. Williams, 3 Jones Eq. 446; Banks v. Booth, 6 Munf. 38&; but see Alexander ■>v. Alexander, 5 Ala. 517; Atwood v. Smith. 11 Ala. 894; Beverly v. Walden, 80 Gratt. 11/7 ; Anderson v. Oranmer, 11 W. Va. 568; or duress, Bray v. Thatcher, 88 Mo. 189; or the validity of a devise, Kennedy v. Kennedy, 8 Ala. 571; Hill v. Barge, 18 Ala. 687; Johnston v. IJainesworlh, 6 Ala. 443; 1 Hoff. Ch. Pr. 508; Coalter v. Bryan, 1 Qratt. 18. Where the chancellor directs an action at law to be brought, the verdict, it seems, is conclusive, Fisher v. Carroll, 1 Jones 30 ¡ S. C., 6 Ired. Eq. 435. See Fitzhugh v. Fitzhugh, 11 Qratt. 810. — Bep.