plainant would be free to roam over a wide [tering assets, be required to pay in full a field of proof and might take the defendants creditor whose claim is founded on a breach with unwarranted surprise. The complain- of trust by the assignor, even though the ant should inform the defendants fully and trust funds had been converted by the asexactly of what particular transactions it signor to his own use before the assignment. intends to rely on as being the ones in con- This ruling is based on the theory that the nection with which the alleged frauds were entire estate passing to the assignee is committed. charged with an equitable lien in behalf of the beneficiary and is received by the assignee burdened with such lien. Another case, Draper v. Stone, 71 Me. 175, is also cited. This case, resting on the same principle, rules that, when plaintiff had delivered shares of stock to defendant's intestate in trust for plaintiff, the defendant, as admin I believe I have passed upon all the objections raised by the demurrer, and for the reasons herein before stated and on the grounds indicated, the demurrer is sustained. Motion to Modify Restraining Order. Should the restraining order now out-istrator of the trustee who had died insolstanding be modified? At the argument on the demurrer the complainant made certain admissions with respect to some of the shares of stock mentioned in the bill. Thereupon the present motion for a modification of the restraining order was made. The admission has since been slightly restricted by the complainant. The motion will be disposed of in the light of the admission as it now stands. This admission is that, as to 350 shares of the preferred stock of Cities Service Company in the name of Horace H. McDowell and 109 shares of the preferred and 2 shares of the common stock in the name of Caroline H. McDowell, the complainant does not seek to impress upon them a trust. It is conceded by the complainant that these shares were acquired by Jesse C. McDowell before he acted in the fiduciary capacity for the complainant which the bill charges and before, therefore, the alleged wrongs and conversions took place. These shares could not have been purchased or acquired with complainant's funds, or in fraud of its rights, and it is, therefore, asked that they be relieved from the operation of the restraining order which now forbids their transfer or assignment in the hands of their record own ers. Upon the making of the motion, I was strongly inclined to grant it immediately. The solicitor for the complainant wished to submit a brief and I, therefore, deferred making a decision. [5] The contention of the complainant as expressed by its solicitor is as follows: "That where a person has misapplied money, or unlawfully enriched himself at the expense of others, his entire estate will be charged with an equitable lien to the amount of the money unlawfully converted, on the theory that the amount and value of his estate have been enhanced and augmented by the unlawful appropriation." Two cases are cited in support of this proposition-McColl v. Fraser, 40 Hun (N. Y.) 111, and In re Mumford, 5 N. Y. St. Rep. 303. They are to the effect that an assignee vent, was required to deliver to the plaintiff the number of shares so transferred in trust, out of shares remaining in the decedent's estate, even though some of the precise shares so transferred in trust had been disposed of by decedent during his lifetime. Conceding to these cases all that they seem to hold, I am unable to see anything in them that bears on the question before me. For here it is admitted that the shares now being considered were acquired by Jesse C. McDowell before he ever assumed that fiduciary relationship toward the complainant upon which the equity of the bill rests. To the extent of these shares, therefore, the estate of Jesse C. McDowell was in no wise augmented by the conversion of the complainant's assets, and no breach of trust attended their acquisition. This circumstance alone, not to mention others, is, in itself, enough to distinguish the instant case from those cited by the complainant. [6] The complainant concedes that under the present allegations of the bill no trust is sought to be impressed upon the 350 shares of preferred stock standing in the name of Horace H. McDowell and 109 shares of preferred and 2 shares of common stock standing in the name of Caroline H. McDowell. These shares may, therefore, be termed innocent shares. Yet their present holders are now restrained from transferring them. Upon what principle? As just observed, it cannot be on the theory upon which the New York cases and the Maine case, cited above, proceed. I know of no possible theory upon which the court is justified in holding them where they are, pending this litigation, except upon the theory that a court of equity may employ its injunctive process for the purpose of holding assets in no wise involved in the pending controversy to the end of the litigation in order that, in case the complainant finally obtains a decree, he may have readily at hand some property out of which he conceives the decree may be made good. But even so, in this particular case, difficult questions lurk in the fact that the shares are in the hands of third persons. These questions, however, I pass over as unnecessary (116 A.) An order will be prepared in accordance with the views herein expressed. After all, though the complainant dis- ing in the name of Horace H. McDowell, and claims his contention to be such, the real the 109 shares of preferred stock and 2 question presented is this, viz.: May the shares of common stock standing in the name writ of injunction be employed in equity to of Caroline H. McDowell. accomplish the same purpose which is served by the writ of. foreign attachment at law? Here the main defendant is a nonresident; he is charged with a breach of trust; property in the names of others, but alleged on information and belief to be his, is found in this state; this property is in no wise involved in the suit; and it is sought by a preliminary injunction to arrest it in the hands of its present holders to await the final de- (Court of Errors and Appeals of New Jersey. cree, and then in some way to compel it to respond to the complainant in case the decree is in its favor. In its last analysis, is not this (eliminating for the moment the material circumstance that title to the shares is in persons other than the principal defendant) an employing of the injunction writ in equity as a foreign attachment is employed at law? The writ cannot be so employed. No authority can be found which allows it. Injunctive relief may be granted on various grounds. In a general way, it may be said that two classes of cases call for its application: First, where, for instance, irreparable injury is threatened, or some forbidden act is about to be done by corporate or municipal officers, in cases of which kind the preventive aid of equity is the ultimate relief sought; and second, where the injunction is sought not as the ultimate and only relief, but in aid of some primary equity which the bill sets up. This case clearly does not fall in the first class; and as to the so-called innocent shares of stock, the case clearly does not fall in the second class, for with respect to these these the bill sets up no equity whatever.. No lien is charged against them and no fraud is imputed to them. They are in no wise related to the controversy. They can be of no possible concern in this suit until the stage thereof is reached where a decree is made. At that time, if the decree should be for the complainant, these so-called innocent shares might in some way be sought in satisfaction of the decree. Assuming that this could be done, then the injunction in equity would be used similarly to and as broadly as the mesne process of attachment at law. At least in substance it would be so. The writ of in junction cannot be used in this manner. Its issuance must be predicated on the existence of some equity. The anticipatory desire to aid the enforcement of a possible future decree, standing alone, has never been recognized as constituting such an equity. The restraining order ought to be dissolved in so far as the innocent shares of stock are concerned, and it will. therefore, be so modified so as to relieve from its operation the 350 shares of preferred stock stand (93 N. J. Eq. 429) I. Injunction Jan. 26, 1922.) 101(3)—What constitutes unlawful picketing question of fact. In suits to restrain picketing during strikes, whether or not intimidation exists is question of fact, and the presence of 25 or 50 pickets may constitute intimidation when a single picket would not. 2. Injunction 101 (2)-Right of combination without molestation of employees recognized in law. The law recognizes the right of members of trade unions to combine in order that they may deal with their employers on terms apunmolested in order that their conduct may proaching equality, but employees must be left be controlled by their reason. 3. Injunction 114(3)-Union organizer not relieved from liability because others actively violated law. In a suit to restrain a trade union and a district business agent from picketing during a strike, the agent, who took part in forming, fomenting or aiding to make an effective orfrom liability by letting others do the active inganization for illegal purposes was not relieved tervention. SWAYZE, J. This is a motion on bill and affidarits for injunction to restrain defendants, employees of complainants, from improper interference in complainants' business during a strike, and also to restrain Bausch, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes who describes himself as business agent of such as the streets afford, consistent with district No. 15 of the International Associa- the right of others to enjoy the same privi. tion of Machinists, from like interference. A lege. Thus men may accost one another with preliminary injunction was issued. Speaking a view of influencing action, but may not generally, it restrained the defendants on the same lines as the defendants in Jonas Glass Co. v. Glass Bottle Blowers' Association, 77 N. J. Eq. 219, 79 Atl. 262, 41 L. R. A. (N. S.) 445, were restrained. From the order so far as this restraint is concerned, no appeal is taken. The appeal is from so much of the order as restrains the defendants from parading in the neighborhood of the plant of complainants, bearing placards or otherwise indicating that a strike is in progress at complainants' plant, and from picketing the place of business of complainants. The object of the appeal avowedly is to secure a decision as to the legality of picketing when unaccompanied with violence, molestation of others, annoying language or conduct-in short, what is sometimes called peaceful picketing. Parading in the neighborhood of complainants' plant with placards indicating that strike is in progress is similar in its legal character to picketing. The [1] Since the present case was argued, the Supreme Court of the United States has decided the general principle underlying the present facts in a case that has been pending for several years, since, at the latest, 1916. Tri-City Central Trades Council et al. v. American Steel Foundries, 238 Fed. 728, 151 C. C. A. 578; American Steel Foundries v. TriCity Central Trades Council et al., 257 U. S., 42 Sup. Ct. 72, 66 L. Ed. authority of that high tribunal is of such weight as to be practically controlling on us in a class of cases in which it must often, and may always, have the full force of a binding authority. It would be unwise in us to assume to sit in review even if the reasoning of the opinion did not commend itself to our minds as in fact it does. It is true that that case was within the terms of the Clayton Act (38 Stat. 730), and this case, as far as the record shows, is not; but Chief Justice Taft discussed the case also as a matter of common law as well as a matter governed by the Clayton Act. We start, therefore, with the ruling in that case as the foundation of our decision. It decided that the employer had the right to the access of his employees to his place of business and egress therefrom without intimidation or obstruction, and the employees recent or expectant had the right to use peaceable and lawful means to induce present employees and would-be employees to join their ranks. The legality of any particular conduct depends on the facts of the particular case. Picketing may or may not be lawful, depending on whether or not it has an immediate tendency to intimidation of the other party to the controversy (to which we add, "if he has ordinary firmness of mind"), or an im resort to persistence, importunity, following, and dogging. The number of the pickets may of itself make the picketing unlawful, since it may amount to intimidation. Every one knows that threats of bodily harm may be made by a mere show of force without violence of language or breach of the peace, and that mere numbers may intimidate. The real question is, Does the conduct under existing facts amount to intimidation? Twenty-five or fifty pickets may, when a single picket probably would not. If information alone were wanted in the pending case, all the information necessary for the defendants to enable them to prosecute their efforts to convert the complainants' employees would have been obtained by a few men. The use of 25 or 50 or 200, as in fact used, was clearly unnecessary, and could not have been intended for any lawful purpose. In view of the testimony as to what actually went on, the Vice Chancellor properly held that the conduct of the defendants was an illegal interference with the complainants' property rights. They were enjoined from personal molestation of persons willing to be employed by complainants with intent to coerce such persons to refrain from entering such employment. They do not appeal. They were enjoined from loitering or picketing in the streets or on the highways or public places near the premises of the complainants, or near any premises, with intent to procure the personal molestation and annoyance of persons employed or willing to be employed by complainants, or causing the employees of the complainant to refrain from or refuse to remain in the employ of complainants. They do not appeal. They were enjoined from violence, threats of violence, insults, indecent talk and abusive epithets, annoying language, acts, or conduct, practised upon any person without their consent with intent to coerce them to refrain from entering the employment of complainants. They do not appeal. They were enjoined from attempting to cause any persons employed by complainants to leave such employment by intimidation or annoying such employees by annoying language, acts or conduct. They do not appeal. They were enjoined from going either singly or collectively to the house of any of the complainants' employees for the purpose of intimidating, urging, annoying, or coercing any or all of them to leave its employ. They do not appeal. They were enjoined from interfering with, hindering, or obstructing complainants' business, and in the operation of complainants' plant in any manner in inducing or compel (116 A.) threats, intimidation, force or violence, any [ their violations of law. It does not follow of the complainants' employees to leave com- that, because aiding in an effective organizaplainants' service, or to refuse or to fail to tion may under some circumstances be legal, perform their duties as such employees. that will be the case under different circumThey do not appeal. stances. A very good illustration is to be found in a case that arose during the recent war. Schenck v. U. S., 249 U. S. 47, 52, 39 Sup. Ct. 247, 249 (63 L. Ed. 470): They were enjoined from in any manner and by any means molesting or interfering with complainants' employees or any of them in going to or returning from their daily "We admit," said Mr. Justice Holmes, speakwork. They do not appeal. ing for the court, "that in many places and in [2] We have mentioned enough of the de-ordinary times the defendants in saying all fendants' conduct which they confess by their that was said in the circular would have been failure to appeal. The injunctions against within their constitutional rights. But the parading and picketing must be read in the character of every act depends upon the cir* The light of such admitted conduct. There can, cumstances in which it is done. * * as Chief Justice Taft said, be no such thing most stringent protection of free speech would as peaceful picketing in such surroundings theatre and causing a panic. It does not even not protect a man in falsely shouting fire in a and the evidence shows how mere picketing protect a man from an injunction against utby overwhelming force runs into intimidation tering words that may have all the effect of and breach of the peace. The law now recog- force." nizes the right of members of trade unions to combine in order that they may deal with their employers on terms approaching equality. On the same principles employees must be left unmolested in order that their conduct may be controlled by their reason, unaffected by the vis metus of great numbers, which corresponds to the vis major of physical force. It might perhaps be claimed that the terms of the injunction from which an appeal was taken were unnecessary in view of the extent of the other restraint, but they were necessary to present the different question of the right to restraint when the situation is such that what would otherwise be peaceful persuasion becomes in the actual fact a system of terrorism. It was in this view that the terms appealed from were added; we think properly added. In the later case of Abrams v. United States, 250 U. S. 616, 627, 40 Sup. Ct. 17, 63 L. Ed. 1173, the same judge, although differing from the majority on the case then in hand, said he did not doubt that, by the same reasoning that would justify punishing persuasion to murder, the United States may constitutionally punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. We need go no further than Chief Justice Taft's opinion for an illustration. Speaking of that case he says: "All information tendered, all arguments advanced and all persuasion used under such circumstances were intimidation. They could not communication in such a place and under such be otherwise. It is idle to talk of peaceful conditions." [4] In our present case the evil to be prevented is the intimidation of workmen, prevention of their free action undisturbed by intimidation. In the existing situation Bausch's conduct tended immediately and directly to unlawful conduct of men associated with him in a common enterprise. The order for injunction must be affirmed, with costs. [3] We have referred to the conduct of the defendants at length and specifically because an injunction was issued against Bausch, and it may be argued that he did no more than the trade unions were conceded the right to do in the American Steel Co. Case above cited. The proof sufficed to show that Bausch was directing the strikers and endeavoring to secure more members for the union with a view to compel the complainants to unionize their shops. He denies that he actively intervened; he admits that he accepted their invitation to aid in forming an effective organization. We think a man who takes part in forming, fomenting or aiding an effective organization for the illegal purpose for which this organization was in fact used cannot escape liability by letting others do the work of "active intervention." He aided in forming, fomented, and aided an "effective organization" which at once committed unlawful acts, for which it was prop- WHITE, J. (concurring). As has been erly enjoined, as it admitted by failing to pointed out, it is in effect admitted that the appeal. Had he desired to keep within the "picketing" in this case abounded in almost bounds of the law, the way to do it was to all conceivable elements of intimidation, but withdraw when his associates (perhaps, in it is urged that these elements might have view of the martial character of picketing, been, although they in fact were not, absent, we may properly say "his forces"), began and that therefore "picketing" as such For affirmance: Justices SWAYZE, PARKER, BERGEN, KALISCH, and KATZENBACH, and Judges WHITE, WILLIAMS, GARDNER, and ACKERSON. For reversal: The CHIEF JUSTICE, Justices TRENCHARD, MINTURN, and BLACK, and Judge VAN BUSKIRK. as should not have been enjoined. This conten- [J. Eq. 653, 66 Atl. 953; Id., 77 N. J. Eq. 219, tion raises in my mind the query, "What is 79 Atl. 262, 41 L. R. A. (N. S.) 445; Jersey the essential and fundamental purpose and City Printing Co. v. Cassidy, 63 N. J. Eq. effect of 'picketing' as practiced in strike 759, 53 Atl. 230; Frank v. Herold, 63 N. J. controversies?" for obviously it is the in- Eq. 443, 52 Atl. 152; Goldberg v. Stablemen's tended and actual consequence of the prac- Union, 149 Cal. 429, 86 Pac. 806, 8 L. R. A. tice which is decisive rather than the or- (N. S.) 460, 117 Am. St. Rep. 145, 9 Ann. Cas. dinary meaning of the name as otherwise 1219; Pierce v. Stablemen's Union, 156 Cal. used. "What we call a rose, by another 70, 103 Pac. 324; Local Union No. 313 v. name would smell as sweet," and a practice Stathakis, 135 Ark. 86, 205 S. W. 450, 6 A. which is intended to and which does reason- L. R. 894; Beck v. Teamsters' Union, 118 ably cause men of average courage to fear Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 immediate or subsequent bodily injury or Am. St. Rep. 421; In re Langell, 178 Mich. death for themselves or their familes, or de- 305, 144 N. W. 841, 50 L. R. A. (N. S.) 412; struction of their homes, or even persecution | Jensen v. Cooks' & Waiters' Union, 39 Wash. of their children, as the result of their dis-531, 81 Pac. 1069, 4 L. R. A. (N. S.) 302; St. regard of a strike order, is none the less in- Germain v. Bakery & C. Workers' Union, 97 timidation, although called by a name Wash. 282, 166 Pac. 665, L. R. A. 1917F, claimed ordinarily to have a peaceful mean- 824; Jones v. Van Winkle Gin & Machine ing. Personally I have no doubt that strike Works, 131 Ga. 336, 62 S. E. 236, 17 L. R. A. "picketing" is intimidation, and that its only (N. S.) 848, 127 Am. St. Rep. 235; Union Paefficacy and its only purpose is through the cific Co. v. Ruef (C. C.) 120 Fed. 102; Atchifear which it engenders. As is well known, son, Topeka & Santa Fé v. Gee (C. C.) 139 a crowd has a doubly, efficient psychology. Fed. 582; Stephens v. Ohio State Telephone It excites its own members, when moved by a Co. (D. C.) 240 Fed. 759. common purpose, to unreasoned exaltation and excesses of attack, and at the same time (largely because of the atmosphere of this well known fact) frightens its victims into what would otherwise be quite unjustified depths of terror. This, as I understand it, is the essence of the opinion by Chief Justice Taft, speaking for the Supreme Court of the United States in American Steel Foundries v. Tri-City Central Trades Council, 257 U. S., 42 Sup. Ct. 72, 66 L. Ed. (decided Dec. 5, 1921), wherein he says: The present case is illustrative of the foregoing idea. Only 140 out of the 700 employees went out on the order for the sympathy strike here involved, but after two days' "picketing" by 50 to 200 "picketers" (largely imported), all except 25 of the other 600 failed to "show up" at their work. The day after the "picketing" was stopped by the order here appealed from, however, we are advised by counsel that all the employees, except the original 140, came back to work, and this although (according to the affidavits) a large number of them had been "The name 'picket' indicated a militant called by name and told by "picketers" that purpose, inconsistent with peaceable persua- if they went back to work they would "get sion. The crowds they drew made the pas- theirs," or "be sorry." or "receive bodily viosage of the employees to and from the place lence." They apparently were not scared by of work one of running the gantlet. Persua- the verbal threats of the individuals after sion or communication attempted in such the backing of the crowd was withdrawn, a presence and under such conditions was but they were afraid to run the gantlet of anything but peaceable and lawful. When the hostile army of "picketers" standing or one or more assaults or disturbances en- parading at and near their entrance to the sued, they characterized the whole cam- factory. paign, which became effective because of its intimidating character, in spite of the admonitions given by the leaders to their followers as to lawful methods to be pursued, however sincere. Our conclusion is that picketing thus instituted is unlawful and cannot be peacable and may be properly enjoined by the specific term because its meaning is clearly understood in the sphere of the controversy by those who are parties to it"-citing Barnes v. Typographical Union, 232 Ill. 425, 83 N. E. 940, 14 L. R. A. (N. S.) 1018, 13 Ann. Cas. 54; Franklin Union v. People, 220 Ill. 355, 77 N. E. 176, 4 L. R. A. (N. S.) 1001, 110 Am. St. Rep. 248; Philip Henrici Co. v. Alexander, 198 Ill. App. 568; Vegelahn v. Guntner, 167 Mass. 94, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443; For the foregoing reasons, I am unable to concede that "picketing" (properly so-called) as applied to strike controversies is ever free from intimidation and obstruction, and I therefore think it is here properly enjoined under the specific term. MINTURN, J. (dissenting). The employees of complainants' plant at Union Hill, being dissatisfied with the terms of their employment, refused to return to work, and sent for Victor Bausch, one of the defendants, to consult and advise with. He advised them to draw up a statement of their demands as to hours and wages, and submit it to their employer, the complainants, for consideration. A committee of employees waited upon complainants for that purpose, |