author: Pee Cueiam.

text:
    William Farrow, Jr., appellant, v. Ethel Farrow, respondent.
    [Argued November 28th, 1905.
    Decided June 18th, 1906.]
    1. Where the defendant in a suit for divorce is accused of numerous acts of adultery, and the credible testimony fails to prove that she had any disposition to commit the crimes charged, it will not be inferred that she did commit those crimes because it was possible that she might have done so.
    2. The testimony of detectives employed by the complainant after the cause is at issue to discover evidence which might.be made the basis of new charges to be presented at the hearing will be received with careful scrutiny. If their narration of the detection of the defendant in the actual crime of adultery is circumstantially denied by the defendant, is improbable in itself, wholly uncorroborated, and its incidents are inconsistent with the undisputed testimony of disinterested witnesses, it should not be made the basis of a decree for divorce.
    On appeal from a decree of the court of chancery advised by' Vice-Chancellor Grey, who filed the following opinion:
    The bill of complaint and its numerous amendments, and the supplemental bill, set forth alleged adulteries claimed by the complainant to have been committed by the (defendant wife. The answers of the defendant explicitly deny all the charges and assert, the entire innocence of the defendant.
    The complainant has been married to the defendant for something over six years, The parties have resided .during their whole married life in the city of Cape May. It is undisputed that their marriage relations were uninterruptedly happy until about the opening of the year 1903. The business of the complainant was that of a Delaware river pilot. He was ofttimes absent from home for periods running from a week to ten days. Before his marriage he had shown a tendency to drunkenness, and since his separation from his wife he acknowledges that he has shown the same weakness.
    His wife, the defendant, taught music, and was the organist in the Presbyterian church in Cape May. She had lived for so long a time in that city that her personality was familiar to-almost every permanent resident.
    The first suggestion that anyone entertained any doubts of the propriety of the defendant’s conduct was disclosed to her by her husband, with relation to her permitting one Charles Doak to visit at their house, because he said people were talking about his attentions to the defendant. It is undisputed that the complainant, in opening this subject to his wife, declared that he did not doubt her, but wished her to avoid any appearance of intimacy ydth Doak in order that gossip about them might cease. It is also undisputed that the wife accepted the husband’s suggestion obediently—that they together requested Mr. Doak not to call at their house. The testimony does not indicate with precision the source from which the husband received this unfavorable account of his wife, but it is undisputed that his father, who is the chief of police of the city of Cape May, had for some time before the breach between the complainant and his wife habitually spoke of her by using a phrase which declared she was unchaste, without, however, narrating any incident within his knowledge which justified such language.
    The complainant and defendant continued their married life, apparently with all confidence in each other, until the month of March, 1904, when the complainant claims that his wife, on going out one evening, told him she would spend the evening at the house of a neighbor. He testifies that she did not go to that place; that he subsequently saw her coming along the street from a different direction, brushing and arranging her dress; that he followed her to their house, and then noticed little pieces of grass upon her dress.
    It is substantially undenied that the husband, in a great rage, then forced his wife into an upstairs room, drew a pistol, and with it threatened her with death unless she confessed that she had committed adultery. The defendant was so frightened that she begged for her life, and, as the complainant himself admits, she declared she would confess to anything-if only he would not kill her. The complainant appears to have-been prevented from further violence by the beggings and pleadings of his wife and of her daughter, a little girl about ten years old. He left the house that night, went to his father’s house, where he has since resided, and within a week or two afterwards, filed his bill in this suit for divorce, because of the alleged adultery of his wife.
    The cause is peculiar because of the frequent changes which the complainant has made since filing his bill of complaint of his accusations against his wife, especially in the addition, after the cause was at issue, of new charges based upon alleged discoveries made by detectives employed by the complainant to-find evidence to be used on the trial of this cause. These additional charges were permitted to be added by way of supplemental bill, in order that every accusation which the complainant makes against his wife might be disposed of at one hearing.
    The bill of complaint, as originally filed, on April 26th, 1904, charges that the defendant, in May, 1903, at No. 603 Lafayette street, in the city of Cape May, and on different days from January to October, 1903, and April 25th, 1904, at No. 505 Hughes street, in Cape Majq committed adultery with Charles Doak.
    The house No. 603 Lafayette street is the residence of Mrs. Linda Eldridge; the house No. 505 Hughes street is the residence of the parties to this suit.
    The defendant’s answer, filed May 11th, 1904, explicitly denies that the offences charged were ever committed at any time or place.
    On May. 23d, 1904, the complainant, upon notice, obtained an order to amend the bill by adding a charge that the defendant committed adultery with one Harry Oliver; at No. 505 Hughes street, Cape May, on divers days of the year 1903, but did not actually file such an amendment.
    The defendant, on June 10th, 1904, filed an amended answer denying the charge of adultery with Oliver.
    The cause was on these issues set down for hearing on October 17th, 1904.
    On that day the complainant obtained leave to file the supplemental bill above referred to, in which, he restated the original charges, and in addition thereto alleged that the defendant committed adultery with Charles Doak on the 17th of August, 1904, on the beach at Cape May, between the “Iron Pier” and the “Music Pavilion,”’ and, also, that she committed adultery, on August 24th, 1904, with a person named John Lucas, on the beach, near the steamboat landing, in Cape May City.
    The hearing of the cause was postponed until these supplemental charges should be answered.
    Answer was filed by the defendant to these supplemental charges on November 7th, 1904. The cause came on for hearing on November 23d, 1904. After testimony had been taken for a day or two, the complainant again, on December 8th, 1904, offered several additional amendments to the bill and supplemental bill, charging new offences. Those which had been brought to the attention of the defendant by the pleadings or by notice some six months before the hearing were admitted as follows: One charging that the defendant committed adultery at No. G03 Lafayette street, Cape May City, in April or May, 190-3, with an unknown man. Another that she committed adultery, in March and April, 1904, with one Harry Oliver, at 505 Hughes street, Cape May City; another that the adultery charged in the supplemental bill to have been committed on August 24th, 1904, on the beach near the steamboat landing, in Cape May, with one John Lucas, was in fact committed with a man named William Lewis.
    Answer was filed denying all these additional charges and the hearing of the cause proceeded.
    The evidence offered by the complainant in support of these various charges arranges itself into two classes. The charges alleging acts of adultery to have been committed on August 17th, on the beach near the music pavilion, and on August 24th, 1904, on the beach near the steamboat landing, originated in and are supported solely by the testimony of the detectives, Wagner and Sague (employed by the complainant after this suit had been brought) for the purpose of discovering evidence which would incriminate the wife as an adulteress, and which the complainant, when he employed these detectives, hoped and expected to produce on this hearing.
    This detective testimony is also differentiated from all the other proof because it is claimed to show that on August 17th and 24th, 1904, the defendant was seen in flagrante delicto.

    In examining the charges made against the defendant, I will consider, first, those on which the suit was originally brought, and, last, those based on the testimony presented by the detectives.
    There are certain general characteristics which attend upon all of the charges máde against the defendant by the non-professional witnesses which should, I think, be noticed. None of them testify that they saw the defendant in the act of adultery, or in any such position or relation that the narration of it suggests a reasonable inference that the act of adultery had been committed.
    It is well-settled law that it is not necessary to prove that a defendant was seen in the act of adultery in order to justify a decree.
    If it be proven that the defendant and the alleged paramour were amorously inclined towards each other, and disposed to commit the crime charged, a showing that they had an opportunity to gratify their desire, under circumstances which indicated that they then committed the crime charged, will support a decree of divorce.
    In this case, though many witnesses testify that they saw the defendant in the company of one or more of the alleged paramours, not a 'single witness (except the detectives) narrates one incident which indicates that the defendant manifested at any time any amorous feeling for any. of the alleged paramorirs. No caresses, no words or acts of endearment, no assumption of familiarities indicating secret understanding or privileges, are testified to by any witness (other than the detectives) to have proceeded from the defendant towards any of the alleged paramours at any time.
    Another peculiarity of the testimony, submitted against this woman is that during the time that the alleged acts of adultery (except those narrated by the detectives) are claimed to have been happening, the defendant was living happily with her husband, looking after the business of her family, he contented with her and she with him.
    Still another oddity is that the accusations of the pleadings, and the proofs brought forward to sustain them, attempt to show that the defendant was in frequent adultery, substantially at the same time, with two men with whom she was known to be acquainted, and with another one (John Lucas or William Lewis), who is not shown to have even been heard of, save on the single occasion of the evening of August 24th, 1904, when (it is claimed by the detectives) he and the defendant were caught in the attempt at adultery on the beach near the steamboat landing under circumstances of shameless publicity. These charges of manifold adulteries could only be true because the defendant is a woman of the most degraded type. Yet it is undisputed that during all this period she was the organist in a church and gave music lessons to little girls, and during the earlier portion of the time, up to March, 1903, she was in happy association with her husband. A feeble attempt was made to prove that she had lost to some extent her social standing, but it was shown that the very persons who narrated incidents now. claimed to be inculpatory had continued to send their children to her home, and to receive her in their own, and not a single instance was proven of any extension of social ostracision towards her, unless that course was taken by the family of the complainant, whose head, the chief of polce, had privately, for a long while, denounced the defendant as a bad woman, without giving any incident to support his accusation.
    With this notice of some of the general peculiarities of the evidence of tire local witnesses, I will examine their testimony given in support of particular' charges.
    The first charge to which the testimony of local witnesses was directed was that the defendant committed adultery with Charles Doak, in ApriLor May, 19'03, at the residence of Mrs. Eldridge, No. 603 Lafayette street, Cape May City. The same charge is repeated in one of the amendments to the bill, wherein adultery at that time and place is related to have been committed with some unknown man. This charge depends entirely upon the testimony of a single witness, a Miss Hughes, who lived next door to Mrs. Eldridge. Miss Hughes testifies that she, being in her own house, heard voices in conversation in Mrs. Eldridge’s house next door. She testifies that these voices were those of Mrs. Eldridge and the defendant, which she recognized, and of an unidentified man. She says she heard all three of them go upstairs, and that she heard the defendant and the man go into the front bedroom; that she heard the mumble of indistinguishable conversation of two voices, and that this mumbling continued for two hours, off and on.
    This witness does not testify that the man whose voice she heard was Mr. Doak, whom she appears to have known. She cl'anns to have recognized the voice of the defendant when engaged in a mumbling, indistinguishable conversation, but does not say that she recognized tire voice of Mr. Doak, who is claimed by the complainant to have been the man of the occasion. The witness saw nothing of the incidents stated. She bases her whole narrative upon what she says she heard, and this includes nothing but inarticulate mumbling, which had to come through two doors and across a hallway and through the house wall to reach her ears, and she says that what she heard was so indistinct that she could not even distinguish the character of the conversation.
    The testimony of a witness who was under such disadvantage in receiving her impressions, which are in themselves so uncertain and indefinite, must be quite unreliable. She saw nothing at all. She heard nothing that was inculpatory. Her characterization of the mumbling does not indicate that the parties whom she overheard were either disposed to or did commit an act of adultery.
    It appears, by other witnesses, that the defendant called on Mrs. Eldridge on the afternoon of the day when Miss Hughes, from the next house, heard the sounds which attracted her attention; that the complainant called for the defendant at Mrs. Eldridge’s residence, asking if she wanted to go driving, which she declined; that Doak also stopped there that afternoon and sat chatting with the defendant and other persons in the parlor. Nothing in the evidence indicates that there was any wrongful purpose in the defendant’s call upon Mrs. Eldridge that afternoon. It was made in broad daylight, at about the time when the children were coming home from school. Her husband, the complainant, knew, or readily discovered, that the defendant was at Mrs. Eldridge’s residence. The defendant did not try to hide her presence there from him, but frankly met him at the door. Her little child, Oetavine, nine years old, was with her. Mrs. Eldridge’s little girl, somewhat older, was there. Mr. Doak stopped casually, leaving his dog (well known to be his) on the front doorstep, while he went into the parlor. Both the defendant and Doak deny, under oath, that any improper action was .intended or performed; both deny they left the parlor or went upstairs that afternoon, and they are corroborated by the testimony of both the children. All the other testimony touching the incidents of that day supports their denials of the defendant’s misconduct.
    The testimony offered on the part of the complainant as to this charge of adultery, in May, 1903, at No. 603 Lafayette street, Cape May, is quite insufficient to sustain it, either as an allegation of the defendant’s adultery with Mr. Doak or with an unknown man. If it suggests a suspicion against the defendant, it is wholly dispelled by the testimony above referred to, presented on the part of the defendant.
    The next charge is that the defendant committed adultery with one Harry Oliver. The allegations are that this was in the year 1903, and in the months of March and April, 1904, at the defendant’s home, No. 505 Hughes street, Cape May.
    The proof submitted in support of this charge is of the least possible weight. No showing is made of any disposition whatever on the part of the defendant to favor the alleged paramour Oliver. Not a witness testifies to any exhibition by the defendant of any amorous preference for or interest in Mr. Oliver, except that one of the detectives testifies that on August 16th, 1904, he saw the defendant at Sewell’s Point accept caresses from Oliver. I will discuss this detective testimony hereafter.
    About all that is proven regarding this alleged offence with Oliver is that some opposite neighbors claim to have seen Mr. Oliver leave the def endant’s house very early one' morning, immediately after the defendant had come out of her front door and looked up and down the street. From this it is argued an act of adultery between the defendant and the man Oliver must be inferred.
    The inference suggested would be violent in the extreme, in view of the absence of all proof of an adulterous disposition between the defendant and Oliver. It is much more likely that some mistake in the identity of the parties was made by which the witnesses were misled. ' Both Oliver and the defendant explicitly deny that any such occurrence took place, and further deny that' they ever had any improper relations of any kind at any time or place. Nor is it probable that any woman who had harbored her paramour over night would, in daylight, herself come out to the front of her home, openly exhibit anxiety lest some one should be looking, and then bring him directly into, view of her own front door.
    The incidents attending the acquaintance of the defendant and Mr. Oliver show that they were friends from early childhood; that Mr. Oliver visited at the Farrow house, just as many other people did, with Mr. Farrow’s knowledge and approval, and, except the testimony of Detective Wagner (hereinafter discussed), not a suggestion is made that there ever was any disposition on the part of either the defendant or Mr. Oliver to overstep the line of decorum.
    These charges constituted the whole case on which the complainant originally filed his bill of complaint and the amendment thereto. No other offences are stated in the pleadings and supported by any testimony, except those brought against the defendant by the professional witnesses, long after the cause had been at issue and noticed for hearing.
    It is true that there is some testimony, notably that given by Chief of Police Farrow (father of the complainant), which is claimed to show that the defendant misconducted herself with Mr. Doak, in July, 1904.
    These incidents are none of them aided by any proof which Avould in any way support a charge of adultery. Most of them narrate instances when the defendant and Mr. Doak were seen in each other’s company in places more or less public. But they state no' attending inculpatory conduct on the part of either of them. Evidence of mere presence together, unless under circumstances which indicate an adulterous disposition, is of no weight to prove adultery. The story of Chief of Police Ear-row that he saw Mr. Doak and the defendant on the night of July 28th, 1904, talking together and then walk under the shade of a tree across lots, where they disappeared, is supported by no other testimony. As narrated by Chief Earrow it did not carry a conviction of its truth. Pie came back to tell it, after he had been once examined and' dismissed from the witness-stand. If it were true, it offered no proof leading to an inference that an act of adultery was then committed. It is alleged to have taken place on July 28th, 1904, long after this suit had been commenced, and after the time when Chief Earrow is shown to have manifested active hostility to the defendant. Yet this supposed offence was not named or included in any pleading, although a supplemental bill was filed after July 28th, 1904, which might have charged it as a breach of the marriage vow. Of course, this incident could not he made the basis of a decree, but it might be evidence to support the other charges, if the circumstances narrated wore true and showed an adulterous disposition.
    Chief Earrow narrated the story that he saw his daughter-in-law' and Mr. Doak (who were by his son then being prosecuted for adultery) meet and walk off together into the shade of a tree, within a block or two of the police station. He neither pursued them or called anyone else to do so.
    Both the defendant and Mr. Doak' deny the whole incident. There is no testimony which in any way supports ■ Chief Ear-row’s story, and I cannot find that, as told, it is of any significance.
    The incident told by Miss Earrow, the sister of the complainant, to the effect that, she and others sawr the defendant and Mr. Doak leave a skating pond .one afternoon together, and go off into the woods, staying half an hour or more, is of the same character. Nothing is narrated touching their behavior towards each other then, or at any other- time, which indicated that they were in. any way disposed to commit tire crime of adultery. The mere possibility that an adulterous act might possibly have been committed, without any proof that the parties were amorously inclined towards each' other, is of no significance.
    The only witness who testifies to the slcating-pond occurrence is Miss Farrow. She says others saw it, but no others are called, in this hard-fought trial, to corroborate Miss Farrow’s testimony. Both the defendant and Mr. Doak deny this incident.
    Another accusatory story is told by Mrs. Annie Turner, a colored woman who formerly worked for.the defendant. After she had once testified for the complainant to some unimportant incidents, and had been dismissed from the witness-stand, and an adjournment had intervened, she was again called by the complainant, and on this second examination testified that she had seen the defendant and Mr. Doak meet and talk for some time under or near an electric light, and that afterwards the defendant begged her (the witness) not to tell her husband of this, meeting. Nothing in the alleged meeting of the defendant and Mr. Doak, as stated by Mrs. Turner, gives the least indication that any criminal intent existed. No statement is made that on that occasion either showed any sign that they were criminally disposed, by either action or speech. They met, it is said, under the glare of an electric light. The alleged request by the defendant that the witness should not tell her husband of this meeting is the only inculpatory incident. If the witness did tell Mr. Farrow all she narrated on the stand, it ought not to have excited a suspicion of his wife’s guilt. The manner of this witness in telling this story did not assure the listener that she was stating what she actually saw and heard. No other witness supported her, and both "the defendant and Mr. Doak deny the whole story.
    Several other accusatory incidents of meetings in alleys and stores between the defendant and Mr. Doak have been submitted. None of them, even if true, present incidents which show the existence of an adulterous disposition or purpose. None go to prove that an act of adultery was committed. All of them are denied, so far as they are accusatory, by both the defendant and Mr. Doak.

      The court of errors and appeals, in Osborn v. Osborn, has characterized cases such as this one is, so far as it rests upon non-professional testimony. That court disapproved of a construction of the evidence which would hold “that opportunity is tantamount to guilt,” and declared that a decree could not be based upon a crime charged and but half proven. 44. N. J. Eq. (17 Stew.) 257, 261.

    This principle applies to and controls the estimate which must be made of all the evidence offered in this case which has been heretofore under examination. Hone of it proves any act of adultery, none of it shows that the conduct or speech of the defendant indicated that she was disposed to commit that crime.
    The charges that acts of adultery were committed by the’ defendant with Mr. Doak on August 17th, 1904, on the beach near the music pavilion, and on the 24th of the same month, on the beach near the steamboat landing, with John Lucas or William Lewis, remain to be considered.
    The incident of August 17th, 1904, is told only by Detective Wagner. He was employed by tire complainant through a Philadelphia detective agency several months after the charges in the bill of complaint in this cause had been filed and answer thereto had been made, and amended charges had been added and they also answered, and an order made setting the cause down for hearing. His employment was to find evidence which the complainant might use to convict the defendant of the crime of adultery when the hearing of this cause should come on. Wagner came to Cape May on the 15th day of August. He testified that on the evening of August 16th he saw the defendant (whose personal appearance and residence had been described to him by the complainant’s solicitor), leave a public entertainment at Sewell’s Point, and accept a hugging from Mr. Harry Oliver. This incident, if true, is of considerable significance. It is the only proof in the whole case that the defendant ever showed any amorous feeling for Oliver. It becomes of great importance to ascertain whether Wagner’s narrative can convey with it a conviction of its truth. He claims to have made written daily reports of everything that he saw. His report of August 16th was produced and handed to him, and he was asked to show anything on it referring to any hugging of the defendant by Oliver at that time, and he was unable to do so. The defendant’s counsel then called for any report which narrated the hugging, and none was produced, though repeatedly called for.
    The concert which Detective Wagner testified the defendant attended at Sewell’s Point was a public show. The defendant had lived all her life in Cape May. Oliver was engaged as a car-starter at the most public places in that city. The two were probably better known than the average residents. Detective Wagner, in his testimony given in this cause, admits that he knows that a detective’s claim to have discovered the evidence which he sought for needs corroboration. But not one person is called as a witness to aid this story in any particular, or even to show that either the defendant or Oliver was seen at Sewell’s Point on the night of the 16th of August.
    Detective Wagner further testifies that on August 17th he saw the defendant leave her house in the evening, alone; saw her join Mr. Doak on the boardwalk; they had a short com versation; Mr. Doak left the boardwalk, going toward the shore, the defendant continuing on the boardwalk till she came ' to Ocean avenue, when she left it and went into one of the beach tents, where Doak joined her. The detective says he was about twenty-five feet from them, under another tent; that he watched the defendant and Mr. Doak caressing each other, from eight o’clock until ten-fifty, and finally saw them commit an act of adultery; that Mr. Doak shortly after went towards Jackson street; that the defendant went alone to the Lafayette Hotel porch, stayed there alone about half an hour, and got home at twelve o’clock at night.
    No other witness supports this testimony in any degree. Both the defendant and Mr. Doak say it is false in every particular.
    In telling this incident of the night of August 17th, when Detective Wagner says he saw the defendant commit adultery with Mr. Doak, the detective frequently varied in his statements. He testified that the defendant left her house at eight o’clock in the evening, and, again, that it was “six or eight o’clock when they metand, again, “slie met Doak at eight-thirtythat he (Wagner) looked at his watch and put that in his report.
    He testified with assurance that a Mrs. Wiley was the defendant’s mother, and when confronted with the suggestion that the defendant’s mother had been dead for twenty-five years, he readjusted his statement by saying that a next-door neighbor of the defendant had told him that the lady pointed out was her mother.
    The defendant first heard of this new charge on October 17th, 1904, in an application for leave to file a supplemental bill. She testified, without qualification, that every incident narrated by Detective Wagner is utterly false, .yet • she says she has been unable to recall just where she was and what she was doing during the evening of August 17th, but she is certain she -was not on the beach under a tent with Mr. Doak. The latter also flatly denies this accusation. The testimony of Mr. D oak’s employer-and that of a casual visitor prove that during a large part of the time when Detective Wagner says that Doak was continually on tire beach with the defendant he was in fact in his employer’s store in Cape May.
    The testimony of this detective regarding this incident which he says he saw on August 17th shows that for several hours he kept in sight of the defendant and Mr. Doak while their conduct gave strong indications that they were not only adulterously disposed towards each other, but that in all probability they would actually commit tire crime of adultery before they parted that night. He had no reason to believe that the complainant’s solicitor or the chief of police of Cape May, the father of the complainant, would hesitate, if requested to furnish an additional witness of the defendant’s fondness for Doak. If ■ his story was true he would in all probability have secured the arrest of the parties in flagrante delicto. Though he says he had hours of opportunity, he did not call anyone else to view the evidences of the defendant’s unfaithfulness which he says he watched, and he gives no reason for his omission to secure a verification of his observations, though his testimony shows that he knew that usually a detective’s testimony needs corroboration.
    Detective Wagner also- testifies to another act of attempted adultery which he says he and his comrade, Detective Sague, saw the defendant commit on the night of August 24th, on the beach at the steamboat landing, with a man named John Lucas or William Lewis. Wagner had brought Sague down from Philadelphia in order that both might at the same time discover some evidence of the defendant’s adultery, and thus corroborate each other in their testimony when they were called as witnesses in this cause.
    Detective Wagner, in his exanrination-in-chicf, testified that the defendant left her house at nine o’clock in the evening of August 24-th. On cross-examination he said she left the house at seven-forty. When reminded of this variance, he was entirely willing to change the hour again, apparently seeking rather to adjust hi.s statements into a consistent story than to relate events from an actual recollection of them. Then he tried to explain the discrepancy by stating that the defendant had returned to her house, an entirely new incident. He further testified, in chief, that they saw the defendant meet a young lady (a person not in any way identified) on the boardwalk; saw them take a trolley car for Ca.pe May Point, and go into a pavilion there, where they got drinks and were joined by two- men. He says the defendant left by the back way with one of these men, the other woman with another. The detectives followed the defendant. She and her man went up the beach some little distance from the steamboat landing, and there Wagner says they saw tire defendant and this man lay down on the sand and open their clothes to commit adultery. He testified that they interrupted them before the crime was actually committed; that the defendant threatened to shoot him (Wagner); ' that they demanded the man’s name, and he replied “William Lewis,” of Wilmington. As the supplemental bill, when filed, charged this offence, the man named was alleged to be John Lucas. This was amended at the hearing to- charge it to have been William Lewis.
    Detective Wagner, on cross-examination, testified that on the' 25th of August he saw Mr. Eldrige, the complainant’s solicitor, and, speaking of the incident of the evening before, said to him, “We got the woman last night at eleven o’clock.”

      This incident of the evening of August 24th, 1904, as narrated by the detectives, happened at Cape May Point, • about four miles from Mrs. Farrow’s home, at about eleven o’clock in the evening. This time and place are of importance in view of the rebutting testimony hereinafter considered.
    The testimony of the other detective, Alfred Sague,. is confined to the narrative of the events of the evening of August 24th. lie came to Cape May as a partner of Wagner to. secure evidence to be offered on this hearing which should prove that the defendant was an adulteress. His testimony followed that of Wagner, and he had the opportunity to arrange his narration of times and events to make a consistent story. Sague, however, differs from Wagner in the most essential point of the incident of August 24th, which they both claim to have witnessed, for while Wagner states it in the clearest terms as an interrupted attempt at adultery, Sague declares that the crime was in fact accomplished. Their descriptions of the narrated incident are not fit for recital, but in my view no two. truthful persons, whose attention was concentrated on such a performance, could possibly vary so radically in their statement of its details.
    There are several other circumstances which attend upon the testimony of these detectives which are worthy of notice. Neither detective in any way identifies either the woman who' they say joined the defendant on the boardwalk or either of the men who were their companions at the steamboat landing. They say the man who was with the defendant declared his name was William Lewis, of Wilmington. But they evidently told the complainant’s solicitor that the man’s name was John Lucas, for that name was the one given in the supplemental bill. No explanation was given for this change of name from John Lucas to William Lewis. No testimony has been given which shows that there ever was such a man as John Lucas or William Lewis, nor has the man said to have been the defendant’s partner in the attempted adultery on that night (August 24th) been in any way identified. It is a necessary inference from Wagner’s testimony that this man could not have been either Mr. Doak or Mr. Oliver, giving a false name, for Wagner testified that he previously identified Oliver by the Sewell’s Point incident on the 16th' of August, and Doak by the incident of August 17th, near the music pavilion. If the man were either Doak or Oliver Wagner would have known him. Neither Wagner nor Sague claims to have known the man Lucas or Lewis. Nor does any evidence in the cause, save the testimony of these two detectives, show that, there ever was any such man. He appears to have come into existence upon this oc'casion only for the purposes of this cause.
    The result is that these detectives claim that within eight days they saw the defendant publicly drinking liquor in saloons late at night, and also saw her almost as publicly accept the lecherous embraces of three different men. Not another witness in the cause ever saw any such conduct on the part of the defendant.
    In delivering this testimony these detectives did not give the impression that they were narrating incidents seen by them, which they were recalling from their memories. Detective Wagner, tire principal professional witness, when closely pressed, on cross-examination, indicated an anxiety to vary and adjust the exact times when he claimed to have seen the defendant to anjr hour which would make his story consistent.
    These incidents, as the detectives present them, were not discovered by penetrating hidden resorts; they say they took place at times and under circumstances when corroboration, by the arrest of the guilty parties, or by calling the attention of the bystanders, who were readily accessible, would have established the complainant’s case, which the detectives were employed to support, and which they knew would probably need the aid of non-professional witnesses. Take the incident of Hie evening of August 24th. The detectives say it took place within three hundred yards of a hotel porch, on which twenty-five or thirty people were sitting. If it ever happened, nothing would have been easier or more natural for the detectives' who were employed to prove the defendant’s guilt than to have arrested both the defendant and her paramour, and to have called the attention of disinterested by-standers to the evidence of their crime. Nothing of this kind was attempted. Detective Sague testified that the reason they did not call the attention of the people at the Delaware Bay House to the defendant’s crime was that they did not want to expose the woman, &c.—a claim of delicate consideration for the defendant, which is wholly inconsistent with 'his threat to “bat her in the face,” which he says he made to her that evening, in response to her threat to shoot him.
    Not one witness in any degree supports the improbable narrations of these detectives, and I am unable to accept them as credible testimony. This result I have reached without considering the rebutting evidence presented on the part of the defendant.
    Vhen that testimony is examined it conclusively shows that the detective story of the accusing incident of August 24th is a fabrication. In the first place, the defendant, in the most explicit terms, denies each and every detail of that story. It is also proven, by the undisputed testimony of disinterested witnesses, that it had been arranged that a vocal concert should be given at the Stockton Hotel, in Ca.pe May, on the night of August 25th, 1904. Mrs. Farrow, the defendant, was invited to attend a rehearsal for that concert, which was to be held at the Ebbitt House on the evening of August 24th, at which rehearsal it was desired that Mrs. Farrow should supply the accompaniment on the piano. She was, at half-past eight to half-past nine on the evening of August 24th, called out of her house to come into the G-lenwood House, next door, to answer a telephone message from the manager of the Ebbitt House, inviting her to come that evening to that house for a rehearsal. She went into the Glenwood House and answered the message, declining the invitation because she had a wounded hand. Thence she went home and sat on her own porch with a Mrs. Wiley and her daughter until about ten o’clock in the evening, when her daughter, Octavine Ware, came home, and then Mrs. Farrow’s daughter and Mrs. Wiley’s daughter went for ice cream, leaving Mrs. Farrow on her home porch with Mrs. Wiley. At about twenty minutes after ten the children returned with the ice cream to Mrs. Farrow’s porch, where she and Mrs. Wiley still were. The ice cream was eaten at Mrs. Farrow’s house, and she was still there when Mrs. Wiley and her daughter retired to bed at eleven o’clock that evening. That is the very hour at which Detective Wagner testified he told the complainant’s solicitor (speaking of his claim to have seen her, the defendant, about to commit adultery with William Lewis at Cape May Point) “we got the woman last night at eleven o’clock.”
    There is no reason to doubt that the defendant’s witnessés have accurately fixed her presence at her home in Cape May during the whole of the period when the two detectives falsely testified that she was at Cape May Point, four miles away. The defendant’s witnesses are entirely disinterested. They testify without hesitátion and with entire frankness. They show, I think, that the detective testimony, which cannot have been given under mistake, is a fabrication without foundation in truth.
    Reviewing the whole of the testimony on the part of complainant, it majr, I think, be justly said that so far as the incidents narrated are credible they are lacking in force to support a conviction that the defendant has been guilty of the crimes charged; and so far as those incidents would, if credible, prove the complainant’s case, they are shown to be entirely unworthy of belief. This view leads to the rejection of the whole of the detective story, for the demonstration that they created a false story regarding the incident of August 24th must be taken to prevent the acceptance of all their testimony in the whole case.
    I will advise a decree dismissing the complainant’s bill, with costs.

      Mr. Howard 0arrow, for the appellant.

      Mr. James M. E. Hildreth and Mr. Charles H. Edmunds (of the Philadelphia bar), for the respondent.
   Pee Cueiam.

The decree appealed from is affirmed, for the reasons stated in the opinion filed ip. the court of chancery by Vice-Chancellor Grey.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Bogert, Vredenburgh, Green, Gray, Dill—12.

For reversal—Reed, Vroom—2.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Michael Mathews et al., appellants, v. John M. Kelly et al., executors, &c., respondents.
    [Argued November 27th, 1905.
    Decided June 18th, 1906.]
    Twenty years after the final account of a guardian of a deceased lunatic has been allowed by the orphans court it will be presumed that the balance in the hands of the guardian has been distributed among those entitled to it.
    On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Bergen, who, at the close of the argument, delivered the following opinion:
    I will dispose of this matter now. This account, which was duty filed and on the 14th day of March, 1883, approved by the orphans court, ascertained that there came to the hands of Lawrence Mathews, as the guardian of his deceased father, a lunatic, $1,665.22, more than twenty j^ears before the bill was filed in the cause. It seems to me, in view of this circumstance, that this court would not be justified in holding that the money thus received has not been property accounted for. A mortgage that lias not had a payment made on it for twenty years is presumed to be paid, in equity as well as at law, and, so far as it appears, the guardian lived in this state until 1903, twenty years after his account was presented and passed, during which time none of the parties now claiming this fund made any demand against him for it. If they did, the presumption is, until overcome by evidence to the contrary, that they were paid. I cannot see that there is any reason for holding this bill, and will therefore advise its dismissal.

      Mr. Normaw Grey, for the appellants.

      Mr. Horace F. Nixon, for the respondents.
   Per Curiam.

The decree appealed from is- affirmed, for the reasons stated in the opinion delivered in the court of chancery by Vice-Chancellor Bergen.

For affirmance—The- Ci-iiee-Justice, Garrison, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Vredenburgh, Vroom, Green, Gray, Dill—13.

For reversal—Port—1.


text:
    The Attorney-General, ex rel. the City of Elizabeth, and The City of Elizabeth, appellants, v. The Central Railroad Company et al., respondents.
    [Argued November 22d, 23d, 1905.
    Decided June 18th, 1906.]
    On appeal from a decree in chancery, advised by Vice-Chancellor Emery, whose opinion is reported in 68 N. J. Eq. 198.

      Mr. Frank Bergen, for the appellants.

      Mr. Richard V. Lindabury, for the respondents.
   Pee Cueiam.

Our examination of this case leads us to the conclusion that the decree appealed from should be affirmed. We concur in the opinion of the learned vice-chancellor before whom the cause was heard in the court below, except so far as it intimates a dissent from the view expressed by the supreme court, in the case of Elizabeth v. Central Railroad Co., 53 N. J. Law (24 Vr.) 491, that under the riparian acts the grant of the state to the Central Railroad Company (which was the- subject-matter of the controversy in that case as well as in the present one) operated to terminate the existence of Elizabeth avenue over the lands included in the grant below high-water mark. As is pointed out by the learned vice-chancellor in his opinion, so far as the issues involved in the present information and bill are concerned, the determination of the supreme court, while unreversed, must be accepted as settling that question, and any expression of opinion upon it by this court in this proceeding would be merely obiter.

For affirmance—The Ci-iiee-Justice, Gaeeison, Fobt, Gaebetson, PIendbickson, Pitney, Swayze, Reed, Bogert, Yee-DENBUBGI-I, YBOOM, GkEEN, GbAY, DlLL-14.

For reversal—None.


text:
    In the matter of the probate of a paper-writing purporting to be the last will and testament of Philip M. Wheaton, deceased.
    [Argued November 24th, 1905.
    Decided April 20th, 1906.]
    On appeal from a decree of the prerogative court made by Magie, ordinary, whose opinion is reported in 68 N. J. Eq. 562.

      Mr. George II. Peirce and Mr. Edwin G. G. Bleakly, for the appellant.

      Mr. Joseph II. Gaskill and Mr. Samuel W. Beldon, for the respondent.
   Per Curiam.

This is an appeal from a decree of the prerogative court, which affirmed a decree of the orphans court of the county of Cape May, admitting to probate the will of Philip M. Wheaton, deceased. The appellant is the wife of the decedent. She filed a caveat against the admission of his will to probate, upon the ground that he was mentally incapable of making a testamentary disposition of his property.

We do not deem it necessary to add anything, by way of discussion of the evidence, to what has been said by the ordinary in his opinion filed in the prerogative court.' We fully concur in the conclusion reached by him that the proofs make it plain that the testator was not lacking in mental capacity at the time of the making of his will, and affirm the decree under review upon that opinion.

The existence of testamentary capacity in the deceased was clearly shown early in the taking of the proofs submitted on the papt of the caveatrix, and was never afterwards doubtful. She consequently had no reasonable cause for appealing from the decree originally made by the orphans court, nor from that subsequently entered in the prerogative court, and, under ordinary conditions, all the costs of each appeal should, be borne by her. But although, as has already been stated, Mr. Wheaton’s mental competency was clearly established early in the hearing before the orphans court, a mass of testimony was subsequently taken before that court, covering over two thousand printed pages—much of it irrelevant, more of it unimportant—and taken with needless prolixity; and this is true with relation both to the direct and the cross-examination of the witnesses produced on the one side and on the other. Just how much of the testimony taken in the case comes within the above description, we have not the time to ascertain with absolute accuracy. It may be said, with confidence, however, that at least one-half of it is valueless in aiding in the determination of the cause.

The appellant should be decreed to pay the costs of the respondent both in the prerogative court and in this court; but in the taxation of costs one-half of the .expense of transcribing and printing the cross-examination of the appellant’s ¿witnesses and one-half of the expense of transcribing and printing the direct examination of the proponent’s witnesses should be disallowed.

For affirmance—The Chief-Justice, Dixon, -Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Vredenburgh, Vroom, GreeN, Gray, Dill—15.

For reversal—None.


author: Pee Cukiam.

text:
    Samuel W. Moore et al., appellants, v. Joseph Galupo, respondent.
    The court of errors and appeals will not intervene and determine questions of fact respecting the status of an appellant for the convenience of respondent, but only for the prevention of injustice which cannot be otherwise prevented.
    On application for a rule to show cause why appeal should not be dismissed.

      Mr. Clarence L. Cole, for the motion.

      Mr. Joseph H. Gasldll, contra.

   Pee Cukiam.

On a verified petition of respondent, setting out that the bill (which by the decree appealed from was dismissed) sought to compel respondent to perform an alleged contract to purchase certain real estate, and that since decree appellant has so altered the condition of the real estate as to make it impossible or inequitable to enforce the contract, it was prayed that this court would allow a rule on appellant to show cause why the appeal should not be dismissed for that reason.

If the appeal goes to hearing and is decided in favor of petitioner, the matter will be entirely disposed of. If the decree below should, however, be reversed and a decree requiring performance be made, petitioner, if entitled to it, can obtain the relief he now seeks by a bill of review upon the newly-discovered matter. Norris v. LeNeve, 3 Atk. 26; Story Eq. Pl. §§ 404, 408; $ Dan. Ch. Pl. & Pr. 1537; Mitf. Pl. 69. While a bill of review for such a cause can only be filed by leave of the court, such leave will doubtless be obtained if respondent’s petition here correctly states the facts.

There may occur cases in which, to prevent injustice, this court will intervene and determine questions of fact affecting the status of an appeal. But such intervention should be necessary to prevent injustice, and not be resorted to for the mere convenience of the respondent. Where an order denying a preliminary injunction against the execution and delivery of a lease was appealed from, this court, after allowing and discharging a rule to show cause why the appeal should not be dismissed because the lease had been actually executed and delivered, proceeded to hear and determine the appeal, and reversed the order appealed from, and remitted the cause, with direction that the injunction issue “unless it appears by such proceedings as may properly be taken in the court below that some essential change * * * has taken place in the status of the case by reason of which the equities are changed,” &c. Black v. Delaware and Raritan Canal Co., 24 N. J. Eq. (9 C. E. Gr.) 455, 483. It appears by tire dissenting opinion of Chief-Justice Beasley (at p. Jf88) that the court decided not to admit evidence in proof of extrinsic facts, by which he evidently meant the fact that the lease had, in truth, been executed and delivered, so that an injunction against its execution would be a mere bruturn fulmen.

The court in that case laid down the practice that must be followed in this case. Although the respondent there placed before the court facts which, if established by proof, would render the appeal of no avail, the proposition to investigate was not adopted, but refused. The appeal was heard and decided, and obviously the refusal to admit the proof, and'the proceeding to hear the appeal, went on the ground that the relief, which might be appropriate, could more properly be granted in the court below.

Tbat is the situation of the case before us, and for the reasons above mentioned the motion is denied.


text:
    Clement C. Clawson, respondent, v. Aurelia Lee Brewer et al., appellants.
    [Argued November 23d, 1905.
    Decided June 18th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 67 N. J. Eq. 201.

      Mr. Thomas S. Henry, for the appellants.

      Mr. Charles H. Halfpenny and Mr. Robert H. McCarter, attorney-general, for the respondent.
   Per Curiam.

The decree in this case is affirmed, for the reasons contained in the opinion delivered in the court of chancery by Vice-Chancellor Emery.

For affirmance—The Chiee-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    Charles L. Nessler v. Industrial Land Development Company et al. On appeal of John C. Short and James Parker, receivers.
    [Submitted December 12th, 1905.
    Decided June 18th, 1906.]
    On appeal from a__ decree of the court of chancery.

      Mr. William D. Snow and Mr. James Parlcer, for the appellants.

      Mr. William M. Clevenger, for the respondents, Ashmead & Hackney.

      .Messrs. Thompson & Cole, for the respondents, Stewart & Morse.
   Per Curiam.

The decree appealed from will be reversed, in order to correct a clerical error in the amount, but without costs.

For affirmance■—None.

For reversal—Ti-ie Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Yre-DENBURGH, YrOOM, GREEN, GRAY, DlLL—14.


text:
    William Naughton, respondent, v. George W. Elliott, appellant.
    [Submitted December 12th, 1905.
    Decided June 18th, 1906.]
    On appeal from a decree of the court of chancery advised by Viee-Ohancellor Emery, whose opinion is reported in 68 N. J. Eq. mo.

      Mr. William J. Leonard and Mr. Richard V. Lindabury, for the appellant.

      Mr. Frederick W. Hope and Mr. James D. Degnam,, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion delivered in the court of chancery by Vice-Chancellor Emery.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Vre-'DENBURGK, VROOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    The Board of Chosen Freeholders of the County of Hudson et al., appellants, v. The Central Railroad Company of New Jersey et al., respondents.
    [Argued November 27th, 28th, 1905.
    Decided March 4th, 1907.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 68 N. J. Eq. 500.

      Mr. John Griffin, for the appellants.

      Mr. George Holmes and Mr. James Benny, for the respondents.
   Per Curiam.

The decre.e appealed from in the above-stated cause is affirmed, for .the reasons stated in the opinion of Vice-Chancellor Garrison, filed in the court of ehancenr.

For affirmance—The Chiee-Justice, Garrison, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Vredbnburgh, Vroom, Green, Gray, Dill—13.

For reversal—None.


text:
    Celina M. Wolters, appellant, v. Robert Shraft et al., respondents.
    [Submitted December 12th, 1905.
    Decided June 18th, 1906.]
    On appeal from a decree of the court of chancery advised byTice-Chancellor Stevens, whose opinion is reported in 69 N. J. Eq. 215.

      Mr. James B. Nugent, for the appellant.

      Mr. Blwood G. Harris, for the respondents.'
   Per Curiam.

The deerep appealed from is affirmed, for the reasons stated in the opinion delivered in the court of chancery hy Vice-Chancellor Stevens.

For affirmance—The Chibe-Justice, Garrison,’ Fort, Garretson, Hendrickson, Pitney, Swayzb, Reed, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    Lawrence A. Van Riper, appellant, v. Jane E. Van Riper et al., respondents.
    [Submitted December 12th, 1905.
    Decided June 18th, 1906.]
    On appeal from the prerogative court.'
    The opinion of Magie, ordinary, is reported in 69 N. J. Eq. 463.

      Mr. Michael Dunn and Mr. Robert E. Yam, ITovenberg, for the appellant.

      Mr. William B. Qourley, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in. the opinion filed in the prerogative court bjr the ordinary.

For affirmance—-The Ci-iiee-Justice, Garrison, Fort, GarKETSON, Hendrickson, Pitney, Swayze, Reed, Bogert, Vre-DENBURGH, VROOM, GREEN, GRAY, DlLL-14.

For reversal—-None.


text:
    Eliza C. Aubry et al. v. Henry M. Schneider et al., executors. On appeal of Louis Renault.
    [Submitted December 12th, 1905.
    Decided June 18th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 69 N. J. Eq. 629.

      Messrs. McFwan & McFwan, for the appellant.

      Mr. Augustus A. Rich, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion delivered in the court of chancery by Vice-Chancellor Stevens.

For affirmance—The Chibe-Justice, Garrison, Port, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Vre-DENBURGT-I, VROOM, GREEN, GRAY, I)]LL-14.

For reversal—None.


text:
    John C. Anderson, administrator, &c., appellant, v. The Supreme Council Catholic Benevolent Legion et al., respondents.
    [Submitted December 5th, 1905.
    Decided June 18th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 69 N. J. Eq. 176.

      Mr.. William Neiocorn and Mr. Freeman Woodbridge, for the appellant.

      Mr. John P. Owens and Mr. 'Thomas Anderson, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion delivered in the court of chancery by Vice-Chancellor Emery.

For affirmance—The Chiee-Justice, Fort, Garretson, Hendrickson, Pitney, Vredenburgh, Vroom, Green, Gray, Dill—10.

For reversal—Garrison, Swayze, Reed, Bogert—4.


author: Magie, Chancellor.

text:
    Mary Ellen McGuinness v. Thomas McGuinness.
    [Submitted June 15th, 1905.
    Decided February 13th, 1906.]
    A wife filed a bill against her husband, praying a divorce from bed and board, for his extreme cruelty, and also praying the custody of children of the marriage, and alimony, &e. The subpoena issued thereon was returned without service, and an order of publication was made, notice of which was served on defendant • in an adjoining state. Defendant not having appeared or made defence, the cause was referred to a special master, who reported that the complainant had established by proofs the allegations of her bill. Thereupon a decree was made for the divorce sought, awarding the custody of the children and fixing the amount of alimony. Property of defendant in this state was afterward sequestered to enforce the decree. Defendant thereafter filed a petition in the cause, praying that the whole decree should be vacated and set aside, and that the complainant’s hill should be dismissed, on the ground that he had not been served with process within this state.—Held, that he is not entitled to any relief upon his petition.
    On order to show cause.

      Mr. Clarence Kelsey, for the complainant.

      Mr. Howard Carro w, for the defendant.
   Magie, Chancellor.

On July 7th, 1899, Mary Ellen McGuinness filed her bill in this court against her husband, Thomas McGuinness, praying for a divorce a mensa et thoro on the ground of extreme cruelty, for the custody of three of the four children of the marriage, and for the support of herself and the children whose custody she sought.

A subpoena was issued upon the bill, returnable August 1st, 1899, and was returned served by the sheriff of Hudson county.

On the 7th of August, 1899, an order, returnable on August 14th, 1899, was made to show cause why an order should not be made for alimony pendente lite and counsel fees. On the hearing of that order a solicitor of this court appeared specially for the defendant for the purpose of objecting to the sufficiency of the service of the notice of that application. Hpon the proofs it was found that the service was good and sufficient for the purpose of the application for alimony and counsel fees, and an order was made directing payment. That order was made on September 11th, 1899.

On January 15th, 1900, an order was made, upon the motion of a solicitor and counsellor of this court appearing for the defendant specially for that purpose, and upon the consent of the solicitor and counsel for the complainant, that the subpoena and return of the sheriff, and the order for temporary alimony and counsel fees, and all proceedings based thereon, should be set aside.

Thereupon a new subpoena was issued, tested January 15th, 1900, which was returned by the sheriff of Hudson county, with an affidavit of non-residence, and on February 7th, 1900, the usual order of publication was made.

Notice of this order was shown to have been personally given to the defendant on February 7th, 1900, in the manner required by the statute and the rules of court.

The defendant having interposed no defence, the matter was referred to a special master. He reported on January 20th, 1901, that the complainant had established her right to. the.relief she sought. On another and supplemental order the same master made an additional report on March 19th, 1901, upon the faculties of the defendant. Thereupon, on May 18th, 1901, a final decree was made decreeing a divorce from, bed and board, giving the custody of the children to the complainant, and fixing the sum which should be paid for the future support of complainant and the three children. A certified copy of the final decree and of the taxed bill of costs was served on the defendant, personally, on July 9th, 1901, and a demand was made upon him for the payment of the costs and the amounts ordered to be paid by the decree, and he refused to comply therewith. Thereupon, on September 27th, 1901, an order of sequestration was made, and John S. McMaster, one of the masters of this court, was appointed sequestrator.

It appears- from the records and files of this court that he has taken charge of some of the defendant's real estate, and has received the rents thereof under the authority of his appointment.

On February 24th, 1902, the defendant filed a petition in the cause. It was signed by him and a firm of solicitors of this court. The petition set forth the proceedings, the final decree and order of sequestration, .and averred that the defendant was not, when the bill was filed, a resident of the State of New Jersey, and had not been served with process within this state, and, for that reason, charged that not only the order for sequestration, but also the final decree, should be vacated and set aside. Its prayers were that the enrollment in the cause be opened; that the final decree and all orders in the cause be opened and set aside; that the subpoena and service and the writ of sequestration be set aside ; that the complainant’s bill be dismissed, and that the petitioner should have further relief. The petition was accompanied by affidavits.

Hpon this petition an order to show cause why- its prayers should not be granted was advised by a vice-chancellor, upon the motion of defendant’s solicitor and counsel. The order was returnable on March 3d, 1902, and service of the order was directed to be made. For some unexplained reason this order was not brought to hearing, and no service, as required, appears.

The matter remained in this condition until April 3d, 1905, when the present solicitor of defendant applied for and obtained an order substituting him for the firm of solicitors previously appearing for defendant, and thereupon, on his motion, another order to show cause why the prayers of the petition of February 24th, 1902, should not be granted was advised by another vice-chancellor. That order was returnable on May 1st, 1905. The hearing was adjourned to May 9th, 1905, and it was then agreed by counsel that it should be heard by briefs, which were furnished about July 1st, 1905. On the part of the defendant no affidavits, other than those appended to the petition, have been presented. On the part of the complainant no affidavits have been presented.

From these recitals it is obvious that the prayers of defendant’s petition are altogether too broad. In respect to some of them, there is not disclosed any ground on which they can be granted. By the files and records in the cause, as well as by the admissions of defendant’s petition, it- appears that the defendant was notified of the pendency of his wife’s suit for divorce on the ground of 'extreme cruelty in the manner which, under our statute and rules, gave jurisdiction to this court to decree a divorce from bed and board for that cause. He was afforded an opportunity to contest her claim if he desired -to do so.. He failed to present any defence. Thereupon adjudication was made that the cause alleged was proved, and the divorce asked was decreed.

There can be no question of the power of this court to make such a decree. Felt v. Felt, 59 N. J. Eq. (14. Dick.) 606. The jurisdiction 'has been exercised in innumerable cases, from the time of the earliest divorce laws, and no serious question has ever been raised thereon. The power to make such decrees, upon such notice to a defendant, has been declared by our court of errors and appeals to be conferred upon this court, and it has been recognized as the public policy of the state on the subject of divorce. A resume of the legislation on the subject is contained in the opinion of Yice-Chancellor Pitney in Wallace v. Wallace, 62 N. J. Eq. (17 Dick.) 509. When that case came before the court of errors and appeals it was there declared that, upon our statute, and service of notice of the suit out of the State of New Jersey, a decree of divorce could be made having extraterritorial force. Wallace v. Wallace, 66 N. J. Eq. (20 Dick.) 361.

Nor do I think there is any possible doubt as to the jurisdiction exercised in this case in making a decree respecting the children of the marriage. When courts are empowered to separate husband and wife, and to break up the family, in my judgment it necessarily follows that power is given to make provision for the custody of the offspring of the marriage thus interfered with.

By section 19 of the Divorce act of 1874 (!8 Gen. Stat. p. 1269) the legislature empowered this court when it decreed a divorce to take order adjudicating upon the care and maintenance of the children, and still broader powers are now conferred by section 19 of the present Divorce act. P. L. -1&02 p. 607. Jurisdiction to decree a divorce a mensa ei thoro was invoked by complainant’s bill, and, in my judgment, a decree respecting the custody of children of the marriage may be supported upon the jurisdiction to decree the divorce and as an incident thereto.

Since the decision of Pennoyer v. Neff, 95 U. S. 714, it has been frequently held that a decree awarding alimony cannot be effectually made against a defendant not served with process within the jurisdiction of the court making the decree. It has been' declared in this court that while a decree for alimony, which was pureiy a decree in personam, would be subject to the doctrine of Pennoyer v. Neff, yet it might .be'otherwise as to such a decree if based on the control of the matrimonial status by a court having .jurisdiction over that status. Hervey v. Hervey, 56 N. J. Eq. (11 Dick.) 166. That was a case in which a wife sought a decree against a husband for support and maintenance under the twentieth section of the Divorce act, and an interlocutory order had been made for temporary'alimony. The defendant, not having been served with process, entered a special appearance to move, and did move, to set aside that order. That motion was denied. Upon an appeal from such denial the order therefor was reversed upon the ground that, as the defendant had not been brought in by process served, nor proceeded against by publication and notice as a non-resident, no jurisdiction had been conferred by the twentieth section to make an order for alimony pendente lite on the ground that the defendant owned property in New Jersey. Hervey v. Hervey, 56 N. J. Eq. (11 Dick.) J). In a subsequent case a decree for divorce and alimony had been made upon service of a notice of an order or publication upon the defendant in the state of his residence, and the defendant, having come into this state, had been seized and held to bail on a ne exeat. The defendant, having moved to discharge the writ and vacate the order for bail, the motion prevailed on the ground that the decree in such a case was purely in personam, and fell within the doctrine of Pennoyer v. Neff. Elmendorf v. Elmendorf, 58 N. J. Eq. (13 Dick.) 113.

It will be observed that the case last referred to is one in which the relief primarily sought was the complete abolition of the marriage relation between the parties. Alimony was sought as an incident of that kind of relief. Among the numerous cases in which the subject I am now considering has been discussed, and in which the doctrine of Pennoyer v. Neff has been applied to judgments or decrees for alimony, I have failed to find any in which the primary relief did not involve the complete severance of the marriage relation.

The case before me is of a different character, and the relief sought by this bill is of a less stringent nature. It seeks a divorce from bed and board for extreme- cruelty. Hnder the Divorce act then in force this court was empowered, for such a marital offence, to decree a divorce from bed and board either forever thereafter or for a limited period, as should seem just and reasonable. Upon such decrees jurisdiction is conferred on the chancellor to make orders for the maintenance of the wife and children, and to enforce such orders upon the husband's property which can be reached by sequestration.

Decrees of divorce from bed and board do not involve any severance of the marital relation. The parties remain husband and wife. The wife retains her right of dower in the lands of the husband. The husband will not thereby be deprived of curtesy in his wife's lands. Alimony upon such a separation is merely the enforcement of the duty which the husband owes to support her who is still his wife and his family. Mr. Nelson declares that an allowance on a decree of separation is equivalent to the award of alimony by the ecclesiastical courts of England upon a decree of divorce a mensa ei ihoro. 2 Neis. Div. § 902. The distinction between alimony in the two eases seems recognized in the opinion of Mr. Justice Pitney, in Lynde v. Lynde. 64 N. J. Eq. (19 Dick.) 736, 750.

In the case of Bunnell v. Bunnell, 25 Fed. Rep. 214, which is recognized as a leading ease on the subject of the application o£ the doctrine of Penneyer v. Neff to decrees for alimony, Mr. Justice Brown suggested that if the state permitted the wife to proceed in her claim for alimony as upon an inchoate lien, the proceeding might be considered as one in rem, and a decree upon a service by publication might be sustained.

If it were necessary to the decision of the present motion, I should hold that—considering the peculiar character of this proceeding, which leaves the marital relation unbroken and recognizes the right to enforce the husband's duty of support of his wife and family, and the provisions of our statute for enforcing a decree which fixes the amount of such support upon .the husband's property in this state—this decree for alimony, although perhaps not enforceable in another state, is enforceable here.

There is .another ground, however, upon which the relief sought by defendant’s petition must be denied..

It is well-settled.doctrine that if a defendant .who claims that' the court in which the suit is pending has not acquired jurisdiction over him attacks the jurisdiction, even under a special appearance, he will he held to have submitted himself to the jurisdiction, if under such appearance he seeks some relief upon the merits. The doctrine is recognized by the text-books and illustrated by many eases, the leading case being that of Livingston’s Executrix v. Story, 11 Pet. 351. It was adopted and applied by our court of errors and appeals to a case where the defendant answered in full on the merits, although he had attempted to reserve an objection to the jurisdiction, which he presented by a plea to the jurisdiction, which had been overruled. Polhemus v. Holland Trust Co., 61 N. J. Eg. (16 Dick.) 654.

The reason of this doctrine is equally applicable to proceedings to challenge the validity of a judgment on the ground that jurisdiction of the defendant had not been acquired. If, under such proceedings, he asks other relief against the judgment on the merits, he will be held to have submitted himself to the jurisdiction. In Crane v. Penny, 2 Fed. Rep. 187, Judge Choate, in dealing with an application of a defendant to vacate a judgment taken by default, which included other relief and a stay pending the application, held that the defendant had thereby submitted himself to the jurisdiction, so that all defects therein were cured. In Burdette v. Corgan, 26 Kan. 102, Judge Brewer held that when a party against whom a judgment has been entered files a motion to vacate it as void, and the motion is based on non-jurisdictional as well as jurisdictional grounds, he thereby enters a general appearance. The doctrine is illustrated by many other cases. Grantier v. Rosecrance, 27 Wis. 488; Anderson v. Coburn, 27 Wis. 558; Alderson v. While (per Chief-Justice Dixon), 32 Wis. 308; Blackburn v. Sweet, 38 Wis. 578; Dikeman v. Struck, 76 Wis. 332; Henry v. Henry, 87 N. W. Rep. 522; Curtis v. Jackson, 23 Minn. 268; York v. York, 55 N. W. Rep. 1095; Pry v. Han. & St. Jos., 73 Mo. 123.

Defendant’s application, which-is to vacate not merely the decree for alimony and its incidents, but the whole decree, although it appears that, under the order of publication and service of notice thereof, the court acquired jurisdiction to decree divorce and custody of children, must be denied.

• T come to this conclusion more readily because the case shows that while the matrimonial domicile was in this state, defendant was guilty of such extreme cruelty as justified his wife seeking the relief afforded by our statute; that although defendant left the state in time to avoid service of process, yet he went only to an adjoining state, and was served there with notice of the pendency of her suit; that although he thus knew of complainant’s claiih, he made no defence, and, after decree and sequestration, waited nearly a year before he filed this petition and procured a rule to show cause, which for three years he failed to bring to hearing, although his property in this state, ample to afford a support for the wife he had ill-treated and the children she has to support, was under sequestration, and has, only after this lapse of time and the changed circumstances, come forward to interpose this technical defence.

As I think defendant is not entitled to any relief, his rule to show cause will be discharged and his petition will be dismissed.


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    Joseph Bayley v. William Bayley et al.
    [Submitted December 12th, 1905.
    Decided February 27th, 1906.]
    A bill, the purpose of which was to avoid certain conveyances claimed to be fraudulent, and to subject the lands conveyed to an execution issued out of an orphans court upon a decree of distribution—Held, demurrable, because no execution can be issued upon a mere decree of distribution; such a decree creates no lien on real estate, and no lien can be claimed by reason of a process not supported by the decree.
    On demurrer to bill.

      Messrs. Hoive & Davis, for the demurrant.

      Mr. Jerome D. Gedney, for the complainant.'
   Magie, Chancellor.

The bill demurred to was filed to make effective upon certain lands in Essex county a writ of fieri facias issued out of the orphans court of that county, which has been levied upon those lands. It states that the fieri facias issued upon an order or decree of the orphans court directing William Bayley .to distribute and pay to complainant $6,594.66.

The bill further states that the lands in question were owned by William Bayley, but had been conveyed by divers conveyances to one Henderson, which conveyances, it charges, were made without consideration, or by fraud, with intent to hinder and delay complainant in collecting the amount decreed to be paid.

A bill having the same general purpose was exhibited in this court by Sarah Bayley against the same parties defendant. A demurrer thereto was interposed and the matter was heard by Vice-Chancellor Reed. Bayley v. Bayley, 66 N. J. Eq. (21 Dick.) 84.

Many of the causes of demurrer assigned in that case have been presented upon the demurrer now under consideration. All of them but one were deemed by the learned vice-chancellor not to disclose an effective objection to that bill. One cause assigned was that it failed to show that the complainant therein had exhausted her legal remedy, and in this respect the bill was found deficient and the demurrer sustained.-

The doctrines declared in that case must be applied to this ease, so far as they are applicable. The causes of demurrer assigned herein, which are identical with those therein declared ineffective, must be so declared by me. There is a cause assigned like the cause of demurrer which was sustained in the other case, but the bill in this case contains allegations which had been omitted in the other case, and they show that in fact complainant had exhausted his legal remedy.

It therefore results that but for the single question now to be considered, the demurrer would have to be overruled.

The cause assigned which raises this question asserts that the bill fails to disclose any judgment or decree upon which the writ of fieri facias which is sought to be enforced could lawfully issue, but, on the contrary, discloses that the judgment or decree upon which it was issued gave no authority for its issuance.

The allegations of the bill on this subject are substantially these: That Mary Bayley, complainant’s wife and the mother of William Bayley, died possessed of certain, shares of stock; that William Bayley was appointed her administrator; that he transferred the said shares to himself, his sister and his brother, and sold those shares which he had transferred to himself; that complainant cited William Bayley to file an inventory of the estate of the intestate, and to account for the same; that William Bayley did thereafter file an inventory and an account, and after-wards filed an amended account; that complainant filed exceptions to both accounts, and that the matter came on to be heard by the orphans court upon those exceptions, and that “in said proceeding” said William Bayley was ordered to distribute and pay to complainant $5,694.66.

It is upon this order alone that the fieri facias was issued.

Upon an accounting by an administrator, at least if the required notice is given, it is settled law that the orphans court may make a decree of distribution. Exton v. Zule, 14 N. J. Eq. (1 McCart.) 501; Adams v. Adams, 46 N. J. Eq. (1 Dick.) 298. It is obvious that the decree shown in the bill is only a decree for distribution. The usual form of such a decree is for distribution and payment of the amount remaining unadministered to certain persons and in certain proportions. Kocher, Orphans Court Practice p. lf-50. The proceeding to obtain a decree of distribution is not a suit between parties, but of the nature of a proceeding in rem, settling the rights of parties, and is, to that extent, a final decree. It is, however, simply declarative of rights in the estate of the intestate. Exton v. Zule, ubi supra; Sayre v. Sayre, 16 N. J. Eq. (1 C. E. Gr.) 505. Nor is the decree less a decree of distribution because it directs a distribution and payment of all the remaining estate to the husband of the intestate entitled to the same jure mariti.

While .the decree of distribution settles the right to a distributive share, it has never been deemed to endow the distributee with any other authority to enforce his rights than -by a suit. Such a suit might be brought at law or in equity, and, under the authority conferred by section 3 of the Orphans Court act, by petition to the orphans court in conformity with the practice prescribed in section 192. The payment of the distributive share could be enforced by an action at law upon the bond of the administrator, but no action at law could be pursued unless the order of distribution had been previously made. Ordinary v. Smith, 15 N. J. Law (3 Gr.) 92; Sayre v. Sayre, ubi supra ; Ordinary v. White, 43 N. J. Law (14 Vr.) 22. While a bill in equity may be maintained for a distributive share before a decree of distribution has been made (Frey v. Demarest, 16 N. J. Eq. (1 C. E. Gr.) 236), it is impossible to conceive that relief by way of a decree for a distributive share could be granted except upon a bill or petition appealing to the court of chancery or the orphans court for such relief.

It is, however, contended that the decree for distribution set out in the bill is a decree whereby money is ordered to be paid by one party to another upon which, by the provisions of section 184 of the Orphans Court act, an execution may issue. In my judgment, the contention cannot be yielded to, and that for two reasons. In the first place, the decree for the payment of money intended by section 184 is one made in a proceeding in which there are parlies seeking and resisting, or having the opportunity to resist, such a decree. As above stated, a decree of distribution is of a wholly different character. In the second place, it is required by section 172 of the Orphans Court act that every person to whom a distributive share of an intestate is allotted shall give to the administrator a refunding bond. No breach of the condition of the administrator’s bond will be disclosed by an averment of a decree of distribution, unless it is also averred that a refunding bond has been given or tendered. Ordinary v. White, ubi supra. To construe section 184 in the way contended for would make the requirements of section 172 superfluous and enable every distributee to acquire his share without giving a refunding bond. Manifestly that construction cannot be given.

It results that the bill discloses no judgment or decree upon which the fieri facias sought to be enforced could have been issued. The writ has nothing to support it, and the bill in this respect is defective.

For this reason the demurrer must be sustained.


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    Maria McAllister v. Robert Fulton McAllister.
    [Decided March 3d, 1906.]
    Where parties intermarry clandestinely, without any intention of establishing a matrimonial domicile, and on an agreement to live separately for the present, the separate living of the husband will not be a desertion of the wife until she repudiates the agreement for separate living by offering to live with him and demanding that he should provide for their living together. A demand by the wife that the husband should support her will not be sufficient unless accompanied by a bona fide offer to live with him.
    On petition for divorce.

      Mr. Robert H. McAdams, for the petitioner.
   Magie, Chancellor.

The parties to this canse, while resident in Connecticut, came to Brooklyn, N. Y., and were there married. After marriage each returned to the residence each had previously occupied. The marriage was clandestine, under an agreement by each not to publicly disclose the fact, and neither expected that a matrimonial domicile would be adopted for the present.

The petitioner testifies that after a short time she heard rumors of her' husband’s attentions to another woman, and threatened to disclose the marriage unless the attentions ceased. She did make a disclosiire, and his parents asked her to come and live with them. She declares that her husband then stated that if she did he would leave his parents’ house.

Of this testimony there is no corroboration.

She further declares that her husband, having lost his employment in Connecticut, desired her to go to her parents’ house in New Jersey, promising that when he procured employment he would “do the right thing by her.”

There is, likewise, no corroboration of this evidence.

An agreement of married people to live separately is contrary to public policy. Either of them may repudiate it, and by a proper demand for a resumption of the marital relation may require the other to perform the marital duties of companionship and support. Such a demand must be accompanied with a bona fide expression of willingness to live in the marital relation. Currier v. Currier, 68 N. J. Eq. 7, 797.

The master to whom the cause was referred has reached a conclusion that such a demand was made and refused, and that a desertion was thereby proved.

I am unable to approve that conclusion.

Hpon petitioner’s own evidence her demand was simply for support. Whether that evidence was corroborated admits of doubt. If corroborated, it was concededly unaccompanied with any expression of willingness to perform her duty as a wife. The qiarties had married with no intention of living together. Before the husband could be put in the wrong the petitioner was bound to express her willingness to live with him and to demand that they should live together.

In my judgment, the evidence is insufficient to support a decree of divorce, and the petition should be dismissed.