I have no doubt that respondent was engaged in the indemnity insurance business. But the provision of such indemnity by an individual is not within the prohibition of the statute relating to the transaction of insurance business. That question was definitely settled by this court in Solomon v. New JerseyIndemnity Co., 94 N.J. Law 318; affirmed, 95 N.J. Law 545. It is not now open to re-examination. The nonexercise of the amendatory power in the intervening period is indicative of legislative acquiescence in this judicial interpretation.
I am in entire accord with the view of the majority that it was not a legitimate equitable function to enjoin the prosecution *Page 396 of the indictment returned against respondent. Nevertheless, it is the undeniable jurisdiction of equity to prevent a multiplicity of suits where necessary to subserve the ends of justice.
My brethren of the majority concede that the prevention of a multiplicity of actions to recover penalties for successive violations of the Insurance act, as threatened here, is within the second class of cases stated by Professor Pomeroy to be the subject of equitable interposition on this ground. But it is said (also on the authority of that author, section 253) that equity will not assume jurisdiction in such cases "unless the plaintiff's right has been established in at least one action at law in his favor;" and it is pointed out that in the instant case "there has been no determination at law of the controverted questions." The fact is, however, that he was there dealing with a subdivision of this class in which "the defendant has brought, or threatens to bring, successive actions at law to recover the same subject-matter from the plaintiff, where from the rules of the legal procedure the title is not determined by a judgment in any such action or number of actions;" and he observed that "this branch has therefore been ordinarily confined to cases of successive actions of ejectment to recover the same tract of land from the plaintiff," where "it follows as a matter of course that equity will not interfere on behalf of the plaintiff, and restrain the defendant's proceedings, until the plaintiff'stitle has been sufficiently established by the decision of at least one action at law in his favor." In this class of cases, he remarks, "the interference of equity assumes that the plaintiff's legal right and title have been clearly determined, and its sole object is to quiet that title by preventing the continuance of a litigation at law which has become vexatious and oppressive, because it is unnecessary and unavailing."
But in respect of the second branch of this class of cases,i.e., where "the single defendant has brought a number of simultaneous actions at law against the plaintiff, all depending upon similar facts and circumstances, and involving the same legal questions, so that the decision of one would virtually *Page 397 be a decision of all the others," the author declares (section 254) that equity may interfere and restrain the prosecution of the actions, "so that the determination of all the matters at issue between the two parties may be brought within the scope of one judicial proceeding and one decree, and a multiplicity of suits may thereby be prevented." While such exercise of equitable jurisdiction is termed "extraordinary," since the "rights and interests involved are wholly legal, and the substantial relief given by the court is also purely legal," the authority indisputably exists, and should be exerted in conformity with a sound discretion, to serve "the ends of justice, and to shield the plaintiff from a litigation which is evidently vexatious." It is said that equitable interference in such cases is not "to restrain absolutely and completely any and all trial and decision of the questions presented by the pending actions at law," but "to prevent the repeated or numerous trials, and to bring the whole within the scope and effect of one judicial investigation and decision." Pom. Eq. Jur. § 254.
While this is undoubtedly the general rule, there is a recognized class of cases, bearing a close analogy to those properly the subject of bills of peace, technically so-called, in which, under this established head of concurrent equity jurisdiction, the injunctive process will go to protect the complainant from continued and vexatious litigation. This jurisdiction is grounded in the general doctrine of public policy that an end ought to be put to litigation. The design of a bill of peace is "to procure repose from perpetual litigation. * * * The obvious ground of the jurisdiction of courts of equity in cases of this sort is to suppress useless litigation and to prevent multiplicity of suits." Story Eq. Jur. (14th ed.) §1173. Under this head, equitable relief has been awarded in cases involving successive prosecutions for violations of statutes or ordinances claimed to be unconstitutional or invalid, successive actions to recover disputed royalties, and like cases. And the mere threat of the institution of successive actions to recover penalties for each transaction claimed to be within the statutory ban may, in the special *Page 398 circumstances, justify equitable interposition on this ground.Boise Artesian Hot and Cold Water Co. v. Boise City,213 U.S. 276; 29 S.Ct. 426; 53 L.Ed. 796; Cleveland v. Cleveland CityRailway Co., 194 U.S. 517; 48 L.Ed. 1102; Detroit v. DetroitCitizens' Street Railway Co., 184 U.S. 368; 46 L.Ed. 592; City ofHutchinson v. Beckham, 118 Fed. Rep. 399; Dows v. Chicago, 78U.S. (11 Wall.) 108; 20 L.Ed. 65; 21 C.J. 76. The probability of a multiplicity of suits, if thereby complainant would be required to "submit to daily interruptions" of his business, suffices. City of Hutchinson v. Beckham, supra. And where the general public interest will be advanced by a speedy and final determination of the question at issue, there is an added reason for equitable intervention. Cleveland v.Cleveland City Railway Co., supra; Detroit v. DetroitCitizens' Street Railway Co., supra.
But, however this may be, it cannot be gainsaid that, while equity may refuse relief in all cases falling into this general category until after the right has been determined at law, such determination is not a jurisdictional prerequisite. Even where the title to real estate is in controversy, the rule that the title must be determined by at least one successful trial at law before equity will intervene is "one of expediency and policy," rather than an essential condition and basis of equitable jurisdiction. Pom. Eq. Jur. § 252.
Thus it is that in this particular respect, i.e., the prevention of a multiplicity of actions to safeguard respondent against oppressive and vexatious litigation, or irreparable injury, the subject-matter of the bill of complaint is fundamentally within the domain of equitable cognizance; and it is the settled rule, lately reiterated by this court inPridmore v. Steneck, 122 N.J. Eq. 35, that an objection to the exercise of this general jurisdiction in the individual case,e.g., on the ground that the controverted right had not been determined at law, must ordinarily be definitely raised inlimine, or it will be regarded as waived, and the decree will not be tainted with error. This principle was likewise applied inDetroit v. Detroit Citizens' Street Railway Co., supra.
Here, there was not only a lack of timely objection, but the *Page 399 commissioner of banking and insurance, representing the state, and the respondent joined, in the court below and on the argument of this appeal, in a prayer for a resolution, in the public interest, of the meritorious question. In the circumstances, the determination of the basic issue was, it seems to me, a proper exercise of equitable jurisdiction in an established field. It was respondent's right to continue the transaction of his business as he had been doing for many years, and to be rid of the oppressive and vexatious litigation, based upon claimed successive violations of this inapplicable statute, that would of necessity result in serious injury to his property rights. Moreover, the speedy decision of the question was in the public interest.
My view therefore is that the decree should be modified in accordance with these principles, and, as so modified, affirmed.
Chief-Justice Brogan, Judge Hetfield and Judge Rafferty join in this dissent.
For affirmance with modification — THE CHIEF-JUSTICE, HEHER, HETFIELD, RAFFERTY, JJ. 4.
For reversal — PARKER, LLOYD, CASE, BODINE, DONGES, PERSKIE, DEAR, WELLS, WOLFSKEIL, COLE, JJ. 10.