author: Grey, V. C.

text:
    West Jersey and Seashore Railroad Company v. Atlantic City and Suburban Traction Company et al.
    [Filed January 8th, 1904.]
    1. Jurisdiction to determine how conflicting easements of way across the same place shall be occupied and used by two or more holders of such easements, is vested in the court of chancery.
    2. That jurisdiction is one of the inherent equitable powers of the court of chancery, which is incapable of exercise by any other forum, and is protected by article 6, section 1 of the constitution of this state.
    3. It is unaffected by any legislative franchise granting to a corporation an easement of way, or by a legislative charter which. empowers a municipality to regulate streets and railroad crossings within its bounds.
    4. Where a newly-organized company is authorized to lay its railroad tracks at grade across the existing tracks of another railroad, and the construction proposed involves only such a crossing, the new company should pay the expenses incident to the safe construction of its tracks across those of the senior company.
    On bill, answers and proofs.

      Mr. Joseph H. Gaslcill, for the complainant.

      Mr. Eli H. Chandler (with whom was Mr. W. M. Sponsler, of the Pittsburg bar), for the Atlantic City and Suburban Traction Company, defendant.

      Mr. Marry Wootton, for Atlantic City, defendant.
   Grey, V. C.

(orally).

The questions argued in this cause, so far as they are affected by previous decisions, present points of law with which I am somewhat familiar. I have also had an opportunity during the argument to examine most of the cases cited by counsel. It is desirable that this case be speedily decided, as the defendant company’s building of its railroad awaits its determination. The essential questions discussed are controlled by established principles, and can as well be decided now as upon further consideration.

The bill is filed by the West Jersey and Seashore Railroad Company, alleging that the tracks of its Chelsea branch cross Florida avenue, in Atlantic City, at grade; that the defendant, the Atlantic City and Suburban Traction Company, an electric trolley company, has a right of crossing at the same place and is about to construct its crossing there, also at grade; that the Atlantic Coast Construction Company is engaged in building the trolley road and crossing and claims a right, therefore, to the temporary occupation of the locus in quo under its contract; that the Pleasantville and Atlantic Turnpike Company, or plank road company, is a turnpike company, also having a right to occupy Florida avenue at the same place, with the right to collect tolls, &e., and that the city of Atlantic City, within whose bounds this particular crossing at Florida avenue lies, has, under its charter, the right to regulate the use of the city streets and all crossings. All these parties have been made defendants and brought into court in this suit by the complainant, the bill of complaint stating the claim of each defendant at the crossing in question.

The bill shows that the city of Atlantic City has, by ordinance, acted on the question of the crossing of the steam railroad tracks by the trolley company’s tracks, by authorizing the trolley company to cross the steam railroad tracks at grade, with no other precautions against danger of collision between the trains or cars of the two companies than a direction that the approaching trolley car shall be stopped, the conductor go ahead and signal to the motorman when the trolley car may safely cross.

This method, the complainant ipsists, is dangerous at this crossing, because of the great quantity of railroad and highway and intended trolley travel- at the place in question, and it asks that the trolley company be restrained from constructing its crossing of the steam railroad tracks (the right to build which is admitted), unless they build an overhead crossing, or, if that be not practicable and the crossing be constructed at grade, that the defendant company may be required' to install an interlocking system of signals with provision for the derailing of cars on one or the other set of tracks before reaching the crossing, or may be required to arrange its crossing in such manner as the court may, under all the circumstances of the case, deem to be safe and proper, invoking the jurisdiction of this court to prescribe a mode in which the right to cross at grade shall be exercised.

So far as an overhead crossing is concerned, the complainant has not attempted, either by proof or argument, to claim that the circumstances of this case justify a decree that such a crossing should be required at the locus in quo.

The defendant Atlantic City and the other defendants, the construction company and the turnpike company, are here by simple appearance, making no active defence.

The Atlantic City and Suburban Traction Company makes a most energetic defence which stands practically upon two points —first, that this court has no jurisdiction to hear and determine the questions submitted by the bill (the locus in quo being conceded to be within the municipality of Atlantic City), because the defendant, the Atlantic City and Suburban Traction Company, has obtained a franchise from the state which authorizes it to cross the complainant’s tracks at grade, and the city of Atlantic City has, by its charter, power to regulate grade crossings within that city, and that city having by its ordinance prescribed a mode of crossing, that mode, even if it tends to injure or impair the enjoyment of the easements of other parties at the same place, is conclusive, and this court has no jurisdiction to alter or change the mode prescribed by" the city authorities. Shortly stated, the defendant contends that the legislative grants of power to the traction company and to Atlantic City, and the action taken under those grants, have conclusively settled the rights of the parties at the crossing in question, so that this court has no jurisdiction in the matter.

That is the first and most strenuously argued point, largely because in the course of the testimony the other point, as to what plan for protection ought to be ordered, has been, by the very efficient exposition of the best and most scientific mode of crossing, pretty nearly agreed to (though not finally settled) by the evidence here produced and by the concessions of the parties, each to the other.

Upon the question of jurisdiction, it being shown that two or more railroad companies, or a railroad company and a turnpike company, or a railroad company and electric road, or a railroad company and the general public using the public highway, or all of them, have easements of way over the same place, usable by each according to its grant and its necessary implications, and that at the crossing in that spot there is danger of obstruction or impairment of the easement of one by the manner in which another uses or proposes to use its easement, or danger to the traveling public, there seems to me no doubt that the court of chancery has jurisdiction (when invoked by any person interested in any of the easements which each may have a right there to enjoy) so to regulate the manner in which the parties shall use their several easements, that each of them and also the public may be saved from the threatened interference or danger.

It is of no significance to say that the defendant has a legislative grant, authorizing it to cross at grade, or that the city of Atlantic City, under its right to regulate grade crossings, has prescribed a mode. The grant of the franchise from the legislature, and the fixing of the mode of its enjoyment by the municipality, are essential incidents necessary to the existence of the defendant company’s right, but they do not take away from the senior company, occupying the same place, its previously granted easement of way. When it appears that the new company’s grant, as proposed to be used, threatens the impairment of the easement of the senior corporation at the same place, there must be some forum where this question can be judicially heard and determined. . The application is a seeking to enforce the equitable maxim that every man shall so use his own as to do the least possible injury to his neighbor. The control of the manner in which conflicting easements may be enjoyed does not take away the rights of any of the companies holding the easements. It only judicially ascertains how each shall so use its-own that its use shall be the least disadvantage to the other. In the very nature of the case the only forum in which relief can be sought must be a court of equity. No other has the remedies of injunction and receiver, which are necessary to the enforcement of the decree fixing the rights of the several parties.

The'jurisdiction which is invoked is one which, in my juclg-' ment, is inherent in this court and protected by the constitution of this state. It existed as one of the general equitable powers of this court at the time the constitution of 1844 was adopted, and is protected by the declaration of the constitution, article 6, section 1, under the head of “Judiciary,” which provides that

"the judicial power shall be vested in a court of errors and appeals in the last resort in all causes as heretofore, a court for the trial of impeachments; a court of chancery; a prerogative court; a supreme court,” -&c.

There is in the constitution no other ascertainment of the jurisdiction of this court than the declaration that its judicial power shall be vested “as heretofore.” So that whatever jurisdiction the court of chancery had at and previous to the time of the adoption of the constitution in 1844, it has' now.

No legislation, whatever its form, can either directly or indirectly lessen or take away the constitutional powers of the court of chancery. Therefore, all these enactments which have been appealed to, granting rights of incorporation or powers to municipalities to regulate streets and crossings, whether within or without a city, make no difference. They cannot take away the inherent constitutional jurisdiction of the court of chancery (in cases where all these functions have been exercised, re-suiting in the existence of conflicting' easements) to hear the parties and determine how each shall enjoy his right as against the others having easements in the same place.

That is my understanding of the declaration of the jurisdiction of this court, made by Chief-Justice Beasley, sitting for the chancellor, in the ease of Delaware, Lackawanna and Western Railroad Co. v. Erie Railroad Co., 6 C. E. Gr. 304, approved by the court of appeals in National Docks Co. v. Central Railroad Co., 5 Stew. Eq. 767; National Docks Co. v. United Companies, 24 Vr. 224, and in the case of Palmyra v. Pennsylvania Railroad Co., 17 Dick. Ch. Rep. 616, 617, which was unanimously affirmed on appeal (18 Dick. Ch. Rep. 799). There is in those opinions no reference to the constitutional relation of this element of chancery jurisdiction, but there can, I think, be no doubt that the power to adjust and arrange the enjoyment of conflicting easements is within the original equitable power-; of a court of equity.

The ease now presented for consideration has some elements of novelty, in that it asks this court to prescribe a mode in which a traction company shall arrange and hereafter manage its crossing of a steam railroad company’s tracks. In the leading case before Chief-Justice Beasley the dispute was between two railroad companies concerning the use of the same tunnel. He allowed an injunction compelling an adjustment of the dispute, intimating that, if necessary, a receiver might be appointed to carry the court’s decree into effect. The judgments in the cases of National Docks Co. v. Central Railroad Co., 5 Stew. Eq. 767, and National Docks Co. v. United Companies, 24 Vr. 224, present different grounds of dispute, but each involved the basic principle of a conflict between parties having easements of wa}r at the same place, regarding the occupation or use of their rights. There is no substantial difference as to the equitable jurisdiction, whether the contention between the parties arises for one reason or another. It is enough pf there is a dispute touching the occupation or use of easements at the same place.

The jurisdiction of this court is, I think, beyond challenge. It only remains to examine the proofs to ascertain how the respective rights of the parties at the locus in quo may equitably be adjusted.

At this Florida avenue crossing the public highway, the steam railroad tracks and the traction company’s tracks will each cross the other at grade. The steam railroad at this place has double tracks. One track is a branch extending down to Chelsea from its main line, and the other track, which runs alongside, is used occasionally as a double-passage track, and usually as a storage track. The proof is that the use of these tracks varies greatly at different seasons of the year; that the locality which they serve is a part of Atlantic City, which is growing with rapiditv and constantly calling for more extended railroad service. It is here shown that the complainant company, in addition to the continued present use of its tracks for steam railroad purposes, intends very shortly to put trolley cars on the same tracks and propel them by electricity. This will largely increase the passenger service on the steam railroad tracks over this crossing.

The Atlantic City and Suburban Traction Company proposes to build its tracks at grade along the middle of Florida avenue, a public highwa)', across these steam railroad tracks, with no 'other precautionary arrangements than are required by the Atlantic City ordinance, which simply provides, as ■ stated, for the stoppage of the electric trolley car as it approaches the railroad tracks until the conductor shall have run ahead, seen that there is no danger and signaled to the car to come on. The motorman then starts the trollejr car, and in that way it crosses the railroad tracks. That is all the protection that is afforded either to the steam railroad trains, to the trolley cars or to the general public traveling the highwaj”, all of whom cross at the same place.

The proof is, and the indications all through the case are, that this Atlantic City and Suburban Company is a corporation which has a purpose and expectation of doing a large business in carrying passengers over its lines. Atlantic City is a place of phenomenal transient travel. The number of people annually carried to and from Atlantic City is many times its own population. Its greatest population in the summer season is probably ten times its smallest in the early winter. Both the increase and the decrease oí this population are now carried by the complainant and another competing railroad company connecting Atlantic City with Philadelphia. That means an enormous amount of travel. The Atlantic City and Suburban Company is the first traction company to enter the city. It is obviously seeking to carry a share of this great number of travelers to and from Atlantic City, and will be obliged to' compete with the steam roads, which have double tracks and run to Atlantic City from Philadelphia in from fifty-five to sixty minutes.

It is, I think, quite plain that in order to do anything at all in the way of competition for such travel, the Atlantic City and Suburban Company will have to use first-class trolley cars (probably in couples) and of large size, well equipped and fitted, and in all likelihood filled to the utmost extent with passengers, and will have to run such cars frequently and with great speed.

The result now plainly indicated, will be, that this defendant company's cars at the particular place in question must cross the steam railroad tracks under circumstances which will necessarily be extremely dangerous, both to those traveling in the trolley cars, to the passengers on the steam railroad company, and also to travelers in ordinary vehicles — wagons, automobiles, and the like — passing over the public highway. All of them are involved in the dangers of this crossing.

The ordinance provision for safety protection seems to be quite inadequate and to subject all the parties to liability to injury from collisions which may occur because of the frequent passage of these many different vehicles, with such variant mo- ■ tive powers, over the same crossing at grade.

The complainant company suggests the adoption, for greater safety, of a self-acting, interlocking and derailing switch system, by which the tracks of the steam railroad or of the trolley company (one or the other) will always be broken, and trains or cars approaching the crossing on those tracks which are broken will be warned by a signal to stop. This is the plan used where the main line tracks of steam railroads cross. It involves very expensive apparatus and the constant attendance of a switchman. As originally proposed, it would cost, capitalizing the annual wages of the switchman, about $37,000.

The defendants have submitted several plans for the protection of the crossing. None of them requires the presence of a switchman, but all of them provide that the trolley tracks shall, at a proper distance from the crossing, be broken until the conductor or motorman shall go from the approaching trolley car and turn a lever, which will, by the same motion, restore the trolley ear tracks until the trolley car crosses, and give one or more danger signals on the steam railroad tracks.

The plan suggested by Mr. Lane, one of the defendants’ experts, who brought with him working drawings, appears to me to afford all necessary protection and warning, and to be so adjustable to varying circumstances that it will meet and relieve against all the elements of inconvenience and danger at the crossing in question.

This plan may have either one signal of warning to the steam railroad or both a “home” and a “distant” signal, if desired. If electric cars be put on the present steam railroad tracks, this plan can be adjusted to meet the proposed change. Its expense will be about $1,800.

My impressions of the whole situation at this crossing favor the adoption of Mr. Lane’s plan, as at once the most feasible, efficient and economical to accomplish the object in view.

The complainant requests a modification of Mr. Lane’s plan by which semaphore instead of disc signals may be put up, and both “home” and “distant” signals be provided on the steam railroad, and that a -pipe shall be used rather than a wire or chain to work the derailment and restoration of the track. These suggestions appear to be reasonable changes, tending, without great additional expense, more effectually to accomplish the object sought.

The parties appear to be able to confer with each other in a very proper spirit. It is for their mutual advantage that the details of the plan finally ordered shall be arranged by conference of their experts. I will advise a decree as above indicated, that Mr. Lane’s plan, with the above-named changes, shall be adopted. I will, however, delay signing any decree for a few days, until the parties have an opportunity, if they choose to use it, to confer together and perfect such an arrangement, under Mr. Lane’s plan, as they may agree upon. The decreee may prescribe the plan so settled. This without prejudice to the right of either party to take an appeal from the decree so framed.

' The expense of this plan of crossing should, in my judgment, be borne by the traction company. That may be a ground upon which that company may desire to appeal from tire order here made, and that right shall not be imperiled by its assent to the precise formulation of the plan in the decree.

The steam railroad company was given the right to put its railroad at this crossing of the highway, and has built and completed its tracks and is now in possession. The traction company has since been given a crossing at the same place. While it is true that the traction company, with respect to the owner of the fee, is enjoying one of the modes of using the public right of way over the land for which the highway was originally taken (Hinchman v. Paterson Horse Railroad Co., 2 C. E. Gr. 75), yet it is equally true that the trolley company has by its franchise acquired for itself a right to exclude from the habitual use of its tracks all those who may be engaged in competitive business. Camden Horse Railroad Co. v. Citizens’ Coach Co., 6 Stew. Eq. 267. Eor this special convenience thus afforded the public in the use of the highway, it is authorized to charge its passengers a fee for using its ears. The construction of its tracks and the safe passage of its cars over steam railroad tracks in its route are means whereby the traction company acquires this privilege. There seems to be no equitable ground which requires the senior company, presently in occupation, to pay anything to enable the junior company to construct its own crossing in such a manner that it shall not impair rights of the senior company already vested and in enjoyment. It is the duty of the junior company so to build its tracks over the senior companjds rails that the crossing may be safe. The junior company has no right to threaten to build them in a dangerous manner, and to require as a condition of its change to safe construction that 'the senior company shall pay its expenses in building on the safer plan.

This settlement of the mode in which the defendant company shall cross the complainant’s tracks does not involve a reconstruction of the whole plan of the crossing in question, whereby the steam railroad tracks and the public highway will, for the better advantage of the parties now in possession, be changed from their present condition. It accomplishes only a crossing of the steam railroad tracks as they now are by those of the newcomer, the traction company. The latter company builds solely for its own advantage. It should, I think, in such a case, pay the expenses of the safe construction of its tracks across those of the steam railroad, now on the spot.

I will advise a decree as above indicated. I will hear parties on the question of costs when the decree is presented for signature.


source: Caselaw Access Project

author: Grry, Y. C.

license: Public Domain

text:
    W. Percy Simpson et al. v. Charles H. Moorhead.
    [Filed January 11th, 1904.]
    1. When a lessee assigns his lease, and delivers possession of the demised lands to his assignee, he may not subsequently intrude upon- them and against the assignee’s prohibition occupy them for their only use.
    2. Where lands subject to ebb and flow of tides are usuable only for shooting of ducks and other game, intrusions day by day upon such lands for the purpose of shooting will be enjoined. The injury suffered by the owner, in the lessening the quantity of game, increasing the danger of accidental shooting- and interfering with his exclusive shooting-rights. is not adequately remediable in damages.
    3. The title to the belt of land lying at .high-water mark within- the tidal waters of the state, and thence out into the sea or river, so far as there can be anj^ ownership of lands, was originally in the State of New •Jersey, in its right as sovereign.

      4. Where such lands have been reclaimed by the riparian owners by excluding the tidewater therefrom by erecting a bank, the title thereto became vested in the reclaiming owner, under the local common law of this state, as declared in the case of Q-ough v. Bell, 3 Zab. 6BJ¡.

    5. If his lands can be identified, the title of the reclaiming owner is not taken from him by the breaking of the banks, which exclude the tidewater from the reclaimed lands, and the admission of the tidewater, whether the submergence be for a long or a short period.
    On bill and affidavits, affidavits in reply, and order to show cause for injunction, &c.

      Mr. George Hampton, for the complainants.

      Mr. William A. Logue and Mr. Clement H. SinnicTeson, for the defendant.
   Grry, Y. C.

(orally).

This is quite an interesting case. The complainants are a number of gentlemen who have associated themselves together for entertainment and sport in a gun club, and have acquired, in their private capacity, the ownership of some uplands and also of some considerable quantity of banked meadow, lying in the county of Cumberland. They complain that the defendant, Moorhead,' comes upon their lands, of which the meadow part is largely overflowed by the tide at certain portions of the day, and guns for birds which come on the meadow and on waters thereof, and for birds flying over the same, thus interfering with and depriving the complainants of their land and subjecting them to loss by reason of the lessened quantity of game; and also to the danger of - accidental shooting, from the increased number of gunners on the lands, and they allege that the defendant declared his purpose to continue so to shoot on their lands and intends so to do. They pray that he may be enjoined from hunting, gunning, shooting, fishing on the said lands or the waters thereof, and from entering thereon for any purpose whatsoever during the term of the complainants’ ownership thereof.'

The defendant files no answer,, but presents affidavits in which he submits his rights and claims, and on them makes a very strenuous argument that no preliminary injunction ought to go in this case.

The lands described in the bill consists of two classes — one, lands which have been either conveyed or leased to the complainants, giving them the right of shooting, fishing, &c. Some of these were assigned by the defendant himself to one of the complainants, and by him jointly to the other complainants. Another body of land, called the Lodge and Borer meadow, is not within any of these leases made by the defendant, nor is it claimed to be.

I think I may say at once that no injunction ought to go as to the Lodge and Borer lands, for there is nothing in the bill or affidavits to show with sufficient certainty where they are. Unless the designation of these lands is given in such manner that the defendant would be apprised of their location with certainty, no injunction ought to issue to restrain him from going thereon.

As to the other portion of these lands, it is admitted that (except the Bobbins meadow) it is held by leases assigned by the defendant himself to one of the complainants. The defendant has had these lands in possession, he has transferred his interest to the complainants and obviously knows where they are located. To the portion called the Bobbins’ part the complainants say they have and claim no right. As to the portion called the Cook meadows the defendant says the complainants have no right, but it appears to be within one of the leases which the defendant himself formerly held and which he has assigned to the complainants.

It is claimed that the terms of these leases, formerly held by the defendant, were mere licenses of a privilege of gunning and fishing, but they are not so expressed in the executed written lease.

The defendant also claims that, though he assigned them, they are not lawfully assignable and therefore the complainants have no right. On looking at the leases I find they are not •mere conferences of privileges. The word of grant used is “lease,” and that is sufficient to pass a term in the lands demised. It is true, the leases do mention, a purpose for which the lands may be used, but they do not prescribe that that shall be the only use to which the lands may be put, and the effect of the leases is to pass title for a term of years in the lands themselves.

So far as the challenge made of the assignability of the leases is concerned, the rule, I believe, is quite well established that, unless a lease of lands expresses on its face a limitation of the power of the lessee to assign it or to sublet the lands demised, the power to assign or to sublet during the term goes to the lessee.

That is a general proposition, applicable to the leases and assignments here under consideration. Therefore, when the defendant, Moorhead, became the holder of the leases in question, he became entitled to assign them. -That right he exercised by assigning them to one of the complainants, and for that he was joaid money, and has so acknowledged by a writing under his hand and seal. The defendant’s counsel has sought to go behind the leases and their assignments and to inquire into the influences and negotiations which induced Mr. Moor-head to make them and to show what he understood to be the rights he was granting. The written contract is not ambiguous and cannot be avoided by parol proof of the antecedent negotiations and conversations.

Mr. Moorhead does not allege that the assignments were made by him b3 any accident or mistake, or that fraud was perpetrated upon him, leading him to make them. They must stand as the written contract is expressed and cannot be varied by parol testimony.

The complainants insist that the defendant not only intruded on the lands which he had assigned to the complainant, Mr. Simpson, but that lie has persistently declared that he intended' and had a right so to do.

It is quite clearly shown that he did so intrude and that, at the time he did it, he believed and insisted that he had a right so to do. The proof quite sufficiently shows that, and the argument here made is also on the same lines.

Disregarding the portion known as the Lodge and Rorer meadow and the Robbins’ tract, and dealing only with the property which Mr. Moorhead' assigned to the parties complainant, it is quite clear to me that he cannot be. justified in going upon those lands, the leases of which he has assigned to the complainants. The defendant here and now says that he does not in the future mean to go on the assigned lands. The. proof is quite clear that he did, in fact, go on those lands and use them for the only purpose for which they are now usable, and at that time he insisted that he had a right so to use them. Even yet it is argued for him that he has a right to go on these very assigned lands, because the tide ebbs and flows over them. His declaration of his future purpose is in conflict with his claim of right in the premises. At this time and for the next few months the only value of these lands will be the privilege of duck shooting upon them. The defendant has without right exercised this privilege and has insisted he had a right to exercise it for himself and his friends. If he is permitted to do this the complainants will be subjected to additional danger of accidental shooting, to the lessening of the quantity of game on their lands, and to the loss of that which they bought from the defendant himself, the right to possess the demised premises free from the defendant’s intrusión. They ought not to be left dependent upon the grace of the defendant, who argues that he has a right to intrude, but at present does not think he will do so. ‘ He may again change his mind and conclude to assert his claimed right to go upon' the lands' under tidewater, even if he has himself sold leases of them which passed to the assignee the right to their exclusive possession.

It is, I think, clearly shown that as against the defendant the complainants have an established right during the terms of the leases assigned to them by the defendant to possess and enjoy for all purposes the meadow lands described in these leases. The'situation when the bill was filed exhibited an intent on the part of the defendant to insist on his right to intrude continuously, day after day, on the lands assigned by him, and to shoot ducks and other game thereon now in season.

The injury suffered by the complainants is within the class called irreparable, ior which they cannot recover adequate damages at law. To be irreparable, it is" not necessary that the money loss shall be so great that it cannot be repaired. The loss which the complainants will suffer is not probably of great money value if the computation be limited to the value of the ducks and other game which the defendant will take. But the acts which he says he has a right to do will deprive them not only of the ducks he may shoot; it will increase the dangers of the sport, invite further and other intrusions, deprive the complainants of the exclusive possession of their property, and will, indirectly tend to defeat the whole investment in their sporting club-house and adjacent lands, for if the defendant and his friends may go there at will, so may everyone else.

The question, which has been very interestingly argued here, touching the ownership of the reclaimed meadow lands lying subject to the flow of the tides, and the effect of subsequent submergence, &c., or any other question challenging the complainants' ownership and right of possession, cannot be raised here by the defendant under the peculiar circumstances of this case. The defendant himself is the grantor of those privileges and rights to the complainants which he now disputes. He cannot be heard to deny the effect of his own deed. It is inequitable that he should be permitted to do so.

The counsel for defendant contends that the lands leased by the owners of the meadows have been suffered to go out to the tide, and that this submergence re-establishes the state's title to those lands and justifies all persons In going as they please upon the tidewaters which may cover such lands.

Some of the principles laid down by defendant's counsel regarding such lands are indisputable. One of them is that the State of New Jersey was, in its right as sovereign, the owner of all that belt of land lying at high-water mark within the tidal waters of the state, and thence out into the sea or river, so far as there can be any ownership of lands. That, in substance, is the holding in the leading cases of Arnold v. Mundy, 1 Halst. 1, and Martin v. Waddell, 3 Harr. 495.

It is, however, equally indisputable that under the local common law ol this state there has from the earliest times existed a right whereby the.private owner of lands at high-water mark had the privilege, of reclaiming the lands of the state lying under tidewater in front of his ownership, which right, when exercised, vested in such reclaiming o.wner-the title of the state in the lands reclaimed. That was declared by the court of ap-' peals in Bell v. Gough, 3 Zab. 624, in 1852. That right (with some limitations as.to wharfing.imposed hy the act of 1851) remained exercisable, at the option of any such owner, up to the time .of .the.passage of'the Riparian act, providing, a specific, plan of acquiring the state’s, title, through riparian commissiqners. Under ..the .privilege of reclamation, the owners of lands lying at high-water mark, in front of which the tidewater mud flats were located, reclaimed them from the waters by banking them in. They, by this sort of reclamation, acquired the title of. the state to .these noil-navigable, mud flats (now called banked . meadows) which lie..adjacent to tidal streams. . This is plainly shown by many, acts of the legislature of this state, arranging for the methods of banking those mud flats as private property, the raising, of money therefor by a system of quasi taxation of the lands within, the bank, and many provisions which clearly recognize private ownership of the reclaimed lands as vested in the owners who had reclaimed them. Many of these statutes are of great antiquity, so ancient as to have been passed in colonial times, preceding the ■ organization of the state itself. Judicial decisions have recognized the validity of these meadow-banking laws, notably the Pequest River Case, 12 Vr. 175, in which Chief-Justice Beasley, in view of their great- antiquity, refused to consider- a challenge of their constitutionality.

The, ownership of the title to these banked meadows was thus, acquired by the riparian owners from the state, and it includes thousands of'acres in the counties of Camden, Gloucester, Salem and- Cumberland-. The meadow company, created under the meadow statutes, consisted of the associated owners of those meadow lands which could be conveniently protected- by one bank. In the use of the reclaimed lands the owners often voluntarily permit them to be overflowed by the tidewater for their improvement by the deposit of silt and mud. It sometimes happens that the banks break and the tidewater comes over them against the will ’of the owners, who spend large sums to exclude it immediately, and after exclusion cultivate as before. At other times, although the breaches in the banks letting in the water may have occurred against the efforts of the owners, yet after they have happened the owners permit the lands to be subject to the overflow of the tide, sometimes for short periods, sometimes for long ones. It is this situation which the defendant’s counsel insists restores title in the reclaimed lands to the state and subjects them while that overflow continues, to the entry of all the citizens of the state for all purposes of gunning, fishing, &c.

It will, I think, be found that the meadow statutes recognize such overflows and continued subjection to tidewater as incidents of meadow ownership and regulate the method of again erecting the banks, irrespective of the length of time the meadows may have been permitted to remain “out to the tide,”' the phrase used in South Jersey to describe the overflowed condition. I know of no adjudication which declares that a title to lands, once vested in a private person, is taken from him and given to the state by the fact that tidewater happens to overflow the lapds.

The custom in South Jersey (where most of the tide meadows lying in this state are located), as is shown by the meadow-banking book entries in the various county clerks’ offices, is to again exclude the tide from the flooded meadows by re-banking them, ofttimes locating the bank in a new place. This is done at any time the owners may choose to put up' the banks again. The periods between the going “out to the tide” and the re-banking are often many years.

The theory that mere submergence takes away private title is quite too uncertain to be made the means of changing the ownership of lands. Does the first overflow divest the owner of his title? If not, how many are required to pass a good title to the state ? The learned counsel has referred to a particular piece of banked meadow in. which he is himself interested, which has for a long time, because of difficulty in maintaining the banks, subjected the owners to great expense. For several years the tidewater has flowed over it for almost as much of the time as it has been excluded. Can it be said, if the owners be willing to allow a continued overflow until the deposit of mud from the tidewater has raised the bed of the meadow and make more easy the maintenance of the bank, or if they want time to raise more money to pay for the banks, they have lost their title to their lands by submergence in the meanwhile ?

The section of the Meadow act (59) referred to by counsel, which enables a majority of the owners to order an overflow, has nothing to do with any change in the ownership of the lands. It is obviously intended to enable a majority of the owners to provide for a temporary overflow. Nothing in that section indicates that if the meadows are overflowed without a majority vote the title to the lands would be affected.

It seems to me to be unquestionable that, if the lands be once reclaimed, the title to such lands remains in the several reclaiming owners whether the tidewater afterwards overflows them or not.

The defendant’s doctrine, if applied to the ownership of banked meadow lands, would prevent the private owner from improving them by allowing an overflow and thus securing the advantage of the deposit of mud thereon from the flowing tide. This practice is common wherever such lands are owned; sometimes the owner overflows his meadows every winter, sometimes for several years continuously.

It may, I think, be truthfully said, that in no case has the overflow of such meadows by the tide, whether it happened by accident or design, ever been accompanied by a purpose to abandon the property. Almost invariably, during the period when overflow is permitted, some acts of ownership over the submerged lands are asserted by the owners.

In the case now before me the banked lands, though overflowed by tidewater, were leased by the owners to the defendant, who evidently did not consider them to be abandoned, for he, after using the lands himself under the leases, has now assigned them to the complainant Simpson for a valuable consideration.

There is a marked difference between the overflow of flats adjoining a river, which almost invariably deposits mud upon them and thus raises their level and improves them for agricultural use, and the action of the sea at the tidewater line, which, sometimes deposits an accretion, and at others, by erosion, carries away the fast land, .with no known or. certain habit of doing either one or the other. In the one case the overflow can be used with certainty, for purposes of deposit and improvement, the lands being readily identifiable by their owners on every recession of the tide.. In the other the very substance of the fast land may be permanently removed so that no means of marking its bounds may remain.

An interesting discussion of. the question may be found in the opinion of the late Chief-Justice Depue in the case of Ocean City v. Shriver, 35 Vr. 550, 556, in the court of appeals, with a collation of the cases and views of learned writers on the subject. The highest authorities all in substance declare that, if the owner’s overflowed land.be.left again uncovered by the recession, of the water, he. shall have it as before if he can make out where - and what it.was, “for he cannot lose his property in the soil though it be for a time become a part of the sea.”

Some of the proofs address themselves to the question of the title of the private owner ’outside of the bank which he has erected. The defendant’s counsel claims that the complainants have no right to exclude the defendant from the shore or “guard” which lies between the bank by which the owner has reclaimed and the bed of the tidal stream. I think this is correct. Wherever the- line of. the bank of the reclaimed land is, that is the line of the private ownership. . Whatever, privilege -of removing mud, &e., for the bank, the owner may take outside of the “guard,”, without interference from the state, does not give title. He has himself put the limit of the line to. which his title runs by his reclaiming bank. If he has been accustomed to exercise a privilege outside of the bank, to- take mud to maintain the bank, that is not reclamation, and gives no title or exclusivo right of possession enabling him to exclude other people from the “guard.” The line of the ownership of the reclaimed land is the line of reclamation. No'.injunction should go against the defendant prohibiting him from going upon the “guard” outside of the meadow bank.

There has been an intimation of a disposition to continue this contest until final hearing. If that be done, there will be a much better opportunity, by personal examination of the witnesses, to ascertain the detail of the facts. As they are now shown, the complainants are entitled to a preliminary injunction. • . . .

I will allow that writ as above indicated, but I. will not award any costs. They may abide the further, order of the court.


author: Stevenson, Y. C.

text:
    Nellie McKensey v. Arthur McKensey.
    [Filed November 2d, 1903.]
    1. Under P. L. of 1902 p. 507 § 19, which provides that “pending a suit for divorce or nullity or after decree for divorce” it shall be lawful for the court of chancery to. make orders for alimony, alimony, may be awarded to a wife after a decree for clivorc.e,. though the petition and decree for divorce are silent on the subject.
    2. “A divorce suit is practically kept open by our new statute after final decree and after' enrollment of the decree for applications for' orders for alimony and the maintenance of children, even though, these matters have, not been originally brought into the suit , by the petition or bill, or by the final decree.”
    Application to amend decree for divorce so as., to insert allowance of alimony.

      Mr. John I. Weller, for the petitioner.

      Mr. Arthur McKensey, pro se.

   Stevenson, Y. C.

The petition presented now to the court shows that the petitioner obtained a decree of divorce from the defendant, on the ground of desertion, in September, 1902. The petition for divorce prayed for “counsel fees and alimony pendente lile and such further and other relief as might seem equitable and just.” No application for alimony or counsel fees seems to have been made. The decree was silent on the subject of álimony and the petitioner alleges that she first learned of that fact in August, 1903, when she went to the office of her solicitors for the purpose of having them procure alimony for her from her former husband. The husband is alleged to have recently come into the possession of considerable property from his father’s estate.

The prayer of the petition is that the decree of divorce may be amended “by inserting therein a direction to the said defendant to. pay” the petitioner alimony and counsel fees. The petition also prays for'such further and other relief in the premises as may be agreeable to equity and good conscience.

If the Divorce act now stood as it was revised in 1874 {Gen. Sial. p. 1269 § 19) there would be serious difficulties in dealing with the petitioner’s case, all of which will appear by an examination of the opinion of Chancellor McGill, in Lynde v. Lynde, 9 Dick. Ch. Rep. 473, which was adopted by the court of errors and appeals. 10 Dick. Ch. Rep. 591. Without looking, however, into the' power of the court to amend a petition for a divorce and decree thereon in a case like this under the facts disclosed on this present application, in my opinion there is no reason why such a power should be exercised in order to' give the petitioner all the relief to which she is entitled. By a slight change in the phraseology of section 19 of the Divorce act, as revised in 1902, an important change of practice was made in cases like Lynde v. Lynde and the one now before this court. The former law, as expressed in the original Divorce act of 1794 and re-enacted in the subsequent revisions of 1818, 1846 and 1874, provided (Gen. Slat. ¶. 1269 § 19) “that when a divorce' shall be decreed” it should be lawful for the court of ’chancery to order alimony, &c.

The present statute (P. L. of 1902 ¶. 507 § 19) provides that “pending a suit for divorce or nullity, or after decree for divorce” it shall be lawful for the court of chancery to make orders for alimón}’’, &c.

In my opinion the phraseology of this section of our Divorce act was changed for the purpose of affecting cases like Lynde v. Lynde. The wife, who sues a husband for divorce, is not obliged to pray for alimony or reserve her right to alimony in the decree for divorce. In large numbers of cases it is impossible for the wife to obtain any practical benefit by praying for alimony while she is suing for a divorce. If, after the divorce has been obtained, it becomes worth while to endeavor to compel the divorced husband to support his former wife, or his former wife and his children, whom he has wronged, there is,no reason why the petition of the former wife should not then properly be presented in order to obtain the practical relief which has just come within her reach. In some cases, when the wife obtains a divorce, a prayer for alimony would be denied on account of the poverty of the husband or the wealth of the wife. Subsequently these conditions might be reversed. There is no reason why a wife, when.suing for divorce, should be obliged to go through the form of praying for alimony to which she is not entitled, or which she cannot in fact obtain, merely for the purpose of saving her right to demand alimony at some future time when a change of conditions may establish her right to alimony or make an allowance of it a practical benefit to her.

The effect of the change of phraseology in our statute has been to reserve the right of the wife, who obtains a divorce from her husband, to alimony even though the petition for divorce and the decree itself are silent on that subject.

A divorce suit is practically kept open by our new statute after final decree and after enrollment of the decree for applications for orders.for alimony and the maintenance of children, even though these, matters have not been originally brought into the suit by the petition or bill or by the final decree. The construction which I put upon our revised statute,- it seems to me, establishes a practice which accords with' common sense and makes for simplicity and convenience in our divorce procedure. If technical rules of equity pleading must be considered in interpreting the changed phraseology of the act, it should be borne in.mind that the allowance-of alimony-is not a distinct and independent form of relief administered in a- suit brought-for the purpose. It is a mere incident to a- divorce suit which may or may not.accompany a decree for divorce.

My conclusion is.that this is not a case.in which the record of the divorce suit should be in any way amended. If the petitioner is, at,-the present time, entitled to alimony or counsel fees, she can enforce her rights- by a direct application to the court, inasmuch as-sijeh application will be .made .after she has obtained her decree for divorce, and the petition now presented is an ample, basis for such application.

In vie-w, however, of the narrow language of the notice of this motion served upon the defendant before any investigation is made of the petitioner’s claim-for alimony, further notice to the defendant must be given. . • ■


text:
    Minnie Winfield v. Bridget M. Bowen, individually and as administratrix of Simon Cosgrove, deceased, et al.
    [Filed December 18th, 1903.]
    1. A tugboat captain, who was a bachelor and an old friend of complainant’s family, was in the habit, for - about fourteen or fifteen years, of coming to her house about once a week, where a room was always kept for him. He generally came on Saturday night, and returned to his boat on Sunday niglit or Monday morning, and' on these weekly visits complainant- kept his books ■ and wrote out reports which he was obliged to band in to the bookkeeper of his employer — work which he was incapable of doing in a satisfactory manner. After he gave up his employment he resided continuously in complainant’s family for about five years, during which time he was supplied with board, lodging, washing and mending, and was nursed by complainant through several illnesses.- — Held, that what he received from complainant was furnished under circumstances which gave her a legal right to compensation, and not under circumstances which merely loft her to expect voluntary compensation by his will.
    2. Evidence considered and held, sufficient to show an agreement to devise a house and lot in payment- for services rendered a decedent.
    3. Where, in consideration of services rendered a tugboat captain, in assisting him with his books and reports as to his business, and in attending to his washing and mending, and supplying him with board and lodging at the house of complainant, where he was in the habit of spending much of his time for a long period of years, he orally agreed to will complainant a particular house ^and lot, of which complainant took possession, with her family, as a home, the specific performance of the agreement is the only adequate remedy which will compensate her for her services, whether or not she is able to maintain an action at law for compensation.
    4. Complainant, in 1872 or 1873, began to render regular and valuable services to O. in consideration of his oral promise to compensate her 'at his death by a devise of a house suitable for a residence. In reliance upon this- promise the services were continued for fourteen or fifteen years. After about eight years of continuous service, in 1881, complainant and C. selected a lot in the city of Newark, which C. thereupon purchased and had conveyed to himself, and upon which he erected a residence adapted to the complainant’s requirements. The complainant at once took possession of the residence with her family and C. continued, as formerly, his practice of making the house his home a part of the time. After about twelve years of service on the part of complainant, some time in 1885, C. executed a valid will, 'devising the house and lot to complainant, and also giving her a legacy of $2,000. This will was, with O.’s knowledge and consent, delivered to- complainant, who kept possession of the same for about eleven years. In 1887 O. gave up business and the complainant’s services, for the most part, ceased. 0., however, then established a permanent and continuous residence with complainant, where he was gratuitously supported for about five years. In 1887 O. proposed to the complainant that another residence be selected in the place of the one she occupied. Accordingly, with complainant’s consent, the residence was sold and a new lot selected and a house was erected thereon by 0., in accordance with complainant’s wishes. O. most'positively declared at the time to the complainant and others that the new house should take the place of the former one, and that it belonged to complainant, and that he was building the house .for the complainant. O., in terms, promised the complainant that the new house should be substituted in the will for the former one. In reliance upon the promises and representations of 0., the complainant allowed her action at law on a quantum meruit to become subject to the defence of the statute of limitations while the will was in-'her possession. About 1896 O. obtained the will and presumably destroyed it. O. died intestate in 1899. In a suit against O.’s heirs and administrators — Seld, that a promise to devise land is within the statute of frauds; that the circumstances of this case, including the continuous possession of the house and lot by the complainant, the possession of the will by the complainant and the subjection by the complainant of her claim at law to the defence of the statute of limitations, in reliance upon C.’s promises and representations, took the case out of the operation of the statute and entitled the complainant to the remedy of specific performance; ■ that to deny the complainant the remedy of specific performance would lead to the accomplishment of a fraud — that fraud is not redressed, but prevented, by the equitable remedy of specific performance in cases of this kind.

      Mr. Chauncey G. Parlcer, for the complainant.

      Mr. Adrian Rilcer and Mr. L. M. Souilvworth (of the New York bar), for the defendants.
   Stevenson, Y. C.

Tlie complainant files her bill against the administratrix and heirs of Simon Cosgrove, deceased, to recover compensation for services rendered and board furnished to him during his lifetime by the specific performance of an agreement to devise a house and lot in Newark, or in case compensation cannot be so secured then by a decree for the value of the services and board in money. The defendants deny that deceased made any con- . tract aiid deny that the complainant furnished anything of value to the deceased for which she is entitled to compensation.

Simon Cosgrove died in January, 1899. His exact age was not proved, but was stated to be about fifty-seven years, although there are indications that he was somewhat older. He was a friend and probably nearly a contemporary of the complainant’s father, one Sofield, who was a pilot in New York harbor, living at Elizabethport, New Jersey. Cosgrove was the captain of a tugboat and appears to have been a frequent visitor in the Sofield family, at Elizabethport, which included the complainant. The complainant, then a young woman, was a school teacher. She is evidently a woman of intelligence and fair education. .Captain Cosgrove, although probably efficient as a tugboat captain, was an illiterate man, as is shown by the numerous specimens of his handwriting. He was manifestly incapable of keeping an even fairly legible and correct set of books. His business required that he should do this thing to a very considerable extent. During the whole period with which we have to deal he had no interest in the tugboat which he commanded, but was in the employ of the person or persons who owned the boat. During the greater part of the time he was in the employ of a contractor, the late E. G. Brown, of Elizabethport, who owned dredges and similar appliances for construction work in our harbors. It was a part of Cosgrove’s duty as captain of the tugboat and manager of the more or less extensive business done therewith and necessarily for the most part done under his eye alone, to keep an account of all the work that his vessel did upon the various jobs in which from time to time it was employed, such as towing dredges, vessels, rafts, &c., and often also to fix the value of the different items of work accomplished by his boat.

Mr. Rogers, the clerk and bookkeeper for years of Mr. E. G. Brown, was produced as a witness for the defendants. Mr. Rogers described the work which Captain Cosgrove did and showed that “he could not get along without keeping some booksthat he was obliged, about once in two weeks, to submit a written statement to the bookkeepers of his employers, exhibiting and classifying the work which his tug had done. This witness also showed that there was considerable business connected with the tug which involved the keeping an account by Captain Cosgrove “of his labor items and board items, and coal and things of that kind.”

It was natural that .Captain Cosgrove should seek the aid of some competent person to keep his books and make his reports. It was natural that he should go to the complainant for this work, as she was the daughter of his old friend. He knew her intimately, always addressing her by her first name. She was sufficiently well educated to be a teacher, and she testifies that she had taught bookkeeping. The necessity for this assistance appears to have arisen in the early seventies, when Captain Cos-grove assumed the charge of Mr. Brown’s boat. At that time (1872) the complainant, wlm had been'married the year before to her present husband, was residing in small but in apparently comfortable quarters in Jersey City. Her husband was a fruit broker in New York: They kept no servant. Captain Cosgrove adopted the practice of coming to the Winfield home in Jersey City about once a week. Ho generally came Saturday night and returned to his boat on Sunday night or Monday morning. According to the testimony of Mr. Winfield, he paid nothing for his board. There is no indication that, either then or at any time thereafter while the relations of these people to each other lasted, Captain Cosgrove ever paid anything directly or indirectly for his board and lodging. He maintained this habit of coming to the Winfield home about once a week, where a room was always kept for him, for fourteen or fifteen years — while the family lived part of the time in Jersey City and part of the time in Newark. In the year 1887 or 1888, when the Winfields were established in Newark and Captain Cosgrove was obliged, from physical incapacity, to give up his employment, he established himself permanently with the Winfields and resided with them continuously for about five years — until 1893. During this period he was supplied with board, lodging, washing and mending, and during several illnesses was nursed by Mrs. Winfield. Hnder the circumstances proved in this case it would be very surprising if Captain Cosgrove .ever paid for these services and ministrations without leaving some evidence of the fact. There is no evidence of any such payment and Mr. Win-field, who was the man of the house and in the absence of a special arrangement would be entitled to receive the board-money if the same was paid, swears positively that Captain Cosgrove paid no board. Hnder the proofs in this case the finding is inevitable that Captain Cosgrove paid nothing for this large measure of support which he received from the Winfield family during a period of about twenty years. His' position in the family, undoubtedly, was largely that of an intimate • friend. He was a bachelor, having apparently no relatives residing near him. He was not only attached to Mrs. Winfield and her husband, but bore a tender affection for their only child. .This child, a boy, Francis S., was bom in 1881 and received Captain Cosgrove’s name Simon.

The evidence satisfies me that from 1872 until 1886 or 1887, when Captain Cosgrove quit his active employment, the complainant, Mrs. Winfield, attended to his bookkeeping. When Captain Cosgrove made his weekly visit to the Winfield home, he carried his illiterate scrawls in diaries and on slips of paper, some of which have been offered in evidence;, and from these materials Mrs. Winfield made the proper entries in the necessary books. At regular intervals, also, Mrs. Winfield wrote out the reports which Captain Cosgrove was obliged to hand in to the bookkeeper of his employer. Mrs. Winfield testifies that she wrote these reports on foolscap paper. Mr. Rogers, the bookkeeper of Mr. E. G-. Brown, testified that, during the whole period of about fifteen years, during which this course of business was continued, Captain Cosgrove handed in his reports on foolscap .paper, written out not by his own hand but in hand- . writing which apparently was that of a woman and was uniformly the same handwriting.

The evidence in this case, to my mind, compels the conclusion that Captain Cosgrove not only received from this Winfield family, who were by no means in affluent circumstances, what amounted to eight or nine years of board, lodging and personal care, but also received directly from Mrs. Winfield important and valuable assistance as a bookkeeper for a period of fourteen years — services which he had to render as a part of his employment, for which he was paid and which he was incapable of rendering personally in a satisfactory manner. The evidence also establishes, to my satisfaction, that Mrs. Winfield was never paid by Captain Cosgrove, directly or indirectly, for any part of these services.

No books of account, such as the testimony shows Captain Cosgrove was obliged to keep, and in fact did keep, were produced in evidence. Young Mr. Winfield testifies that in 1893, five or six 3rears after Captain Cosgrove had given up active employment and. consequently ceased keeping books, when he was about to remove from the home of the Winfields and establish himself in Elizabethport again, he burned these books in the back yard of the Winfield premises, together with other things which were of no longer any value and with which naturally he would not wish to be encumbered.

• The first question which presents itself for solution is whether .■all this labor was performed by Mrs. Winfield, and board and lodging for these many years were supplied by her or her husband as a mere gratuity to Captain Cosgrove, this old family friend, this bachelor, without expectation of compensation, or, if ■with the expectation of compensation, merely with the expectation that such compensation would be voluntarily made by ■Captain Cosgrove in the form of a gift by will or otherwise. Captain Cosgrove apparently was not in the habit of making-gifts, and supplied little or nothing of value in that form to the Winfield family. If the services were gratuitously rendered, they must have been, it seems to me, either purely out of good will or under the inspiration of the hope of a substantial legacy in Captain Cosgrove’s will. Practically, the question in the case, is whether the services were rendered under circumstances which gave the complainant a legal right to compensation, or whether the complainant was beguiled into rendering them in reliance on a legacy which might or might not be made.

In my opinion, the evidence in this case leads to the conclusion that wlrat Captain Cosgrove received from Mrs. Winfield was furnished under circumstances which entitled her in law to compensation, and not under circumstances which merely left her to the enjoyment of expectations from the testamentary action of Captain Cosgrove, in respect of which, it turned out, she was bitterly disappointed.

- The direct testimony in regard to the basis upon which the business relations of these peojfie were established, in 1872 or 1873, comes from the husband of Mrs. Winfield alone. Counsel for the defendant, pursuing his legal rights, sharply excluded the testimony of Mrs. Winfield wherever it dealt with any “statement by or transaction with” the deceased Captain Cossrove. Some testimony of this character inadvertently appears in the case, but not, as I recall it, through any waiver or consent of counsel for the defendant. Any such testimony must, of course, be excluded from consideration.

Mr. Winfield is a conspicuous example of what lawyers technically call a “bad witness.” In any matter requiring accuracy of observation, accurate regard to the questions of counsel or accuracy of statement in response thereto, his testimony would be of little probative value. He is easily flustered, talks heedlessly, often answers one question when he thinks he is answering another, and the result is that his testimony is full of inconsistencies and even contradictions. But it is noticeable that these characteristics of his testimony are exhibited equally in all parts of his story — those which are important to his wife’s case, in which he is deeply interested, and those which plainly have little bearing upon that case. It is easy to reach the conclusion that it would be unsafe to rely upon Mr. Winfield’s accuracy in regard to matters in which the truth depended upon correct details without imputing to him the intention, even in a cause so deeply affecting his own interests, of manufacturing a story out of whole cloth and boldly supporting it by perjury.

Mr. Winfield, in his direct examination, testifies, in substance, that in 1S72 or 1873, while he and his wife were living in Jersey Citjf, about a year after their marriage, Captain Cos-grove came to their residence and proposed to' Mrs. Winfield, whom he called “Minnie,” that she should take charge of his books, and perhaps some other business, and that he stated that he did not expect her to work without compensation, and when asked by Mrs. Winfield what her compensation would be, he said that he would get her a house and lot wherever she saw fit to select a place of residence, when he was able. Taking the whole testimony of the witness on direct and upon cross-examination, I think that he means to testify that the proposition included the board and lodging of Captain Cosgrove, which at that time would not amount to more than about a day in the week, or a day and two nights on the average, and that while the parties contemplated that the house and lot, when procured, should at once become the residence of Mrs. Winfield, the conveyance of it would be effected by Captain Cosgrove’s will.

It may be conceded that the contract, as originally made, lacked several of the characteristics necessary in a contract which can be specifically enforced by this court. If, in pursuance of this arrangement, Mrs. Winfield had rendered services as bookkeeper and furnished board to• Captain Cosgrove for a number of years, and then he had died or undertaken to dis-affirm the contract, Mrs. Winfield’s sole remedy might have been by an action at law on a quantum meruit. If the parties had never done anything to make the contract definite in its terms, it may be conceded that no court of equity would enforce it specifically and no action at law could be maintained upon it.

But the situation was radically changed as time went by. In 1881 Captain Cosgrove and the Winfields proceeded to select a lot in the city of Newark — 101 Congress street — which Captain Cosgrove bought in his own name, and upon which he erected a dwelling-house to meet the requirements of the Win-field family. From 1881 until about 1888 all the parties appear to' have continued their relations in precisely the same way as while the Winfields were living in Jersey City. Mrs. Winfield kept the books and made the reports and Captain Cos-grove had his room ever ready for him and occupied the same and took his meals with the Winfields, usually from Saturday until Monday of every week.

In 1885 Captain Cosgrove made his will. This will was drawn by Mr. Charles A. Feiek, a practicing lawyer of Newark. Some time between 1896 or 1898 and Captain Cosgrove’s death, in 1899, the will appears to have been destroyed by Captain Cosgrove himself. At any rate the will has not been found, although due search has been made therefor. Mr. Feiek testified to its contents. He recollects distinctly that the will left the Congress street house • to Mrs. Winfield, and he thinks that there was some conversation at the time of the execution of the will in regard to the reason for this devise, and that Captain Cosgrove gave as a reason that he had boarded with the Win-fields a long time and had not paid any board, and that he was making the devise “for compensation of that kind.” The witness cannot swear positively in regard to this matter, but he seems to have confidence in the general accuracy of his recollection. It is evident that Captain Cosgrove might have included in his statement a reference to the services of Mrs. Winfield, and yet Mr. Eeick, not being aware of the special services which Mrs. Winfield was rendering and had rendered, would not appreciate the full force of the words which the captain employed. The indebtedness for board he would readily understand and be apt to remember. If the phrase was “board and services,” Mr. Eeick would be very apt to refer the word “services” to such services as are usually rendered by the boardinghouse keeper. If Captain Cosgrove’s statement left it uncertain whether he was seeking to discharge a legal obligation or a moral obligation only, the fact remains that he admitted that he had boarded with the Winfields for a long time and paid no board, and he declared, not that he was making a gift, but that he was rendering compensation. There was no reason why lie should disclose to the lawyer any bargain which he had made with the Winfields years before, and there are indications in this case that Captain Cosgrove, possibly from a motive of pride, was inclined to conceal the fact that he was unable to properly discharge an important part of the duties of his position, and therefore was obliged to call in the aid of a woman.

The testimony of Mr. and Mrs. Winfield, and their son, I think as well, is positive in regard to the contents of this will. They say that it not only devised the house and lot, No. 101 Congress street, but also gave Mrs. Winfield a legacy of $2,000.

A writing without date is also produced, which is proved to be in the handwriting of Captain Cosgrove. The possibility of forgery is practically excluded and no attempt was made to question the genuineness of the writing. It is a rude attempt at a will or instructions for a will, such as an illiterate man would be liable to write down. It undertakes to give to Mrs. Winfield the house and lot known as 101 Congress street, Newark, N. J., and $2,000. Eive hundred dollars is given to a sister, Bridget Bowen, in trust for another sister and the residue of the property is then given to the sister Bridget Bowen. There is no signature. At the top of the paper, as an after thought, or to correct an omission, are the words “My gold wach and Chains to Frank S winfield.”

I shall not undertake to discuss the conflicting testimony in regard to the history of this paper. The testimony of Mr. Winfield in regard to it strikingly illustrates the difficulty which this gentleman experiences when he undertakes to confine his mind to any subject-matter, to listen to questions in regard to such subject-matter, and answer them thoughtfully and intelligently.

I cannot find from the testimony support for the theory that Mrs. Winfield, often at the expense of the performance of her household duties, rendered these important and valuable services to Captain Cosgrove for ten or twelve years in order merely to curry favor with the old bachelor and win from him a reward in' the shape of a legacy. I do not think that the perusal of this whole testimony would justify the conclusion that Captain Cos-grove would have gone to Mrs. Winfield, this young married Avoman, the daughter of his old friend, who, hoAvevor, was under no obligations to him, and Avould have asked her, year after year, to render these efficient and valuable services, to receive him into her house from week to week and keep a room there always ready for him without offering her any pecuniary compensation. To ask for and receiAre such sei’Adces gratuitously Avould be discreditable to a man in Captain Cosgrove’s position. While it may be that the testimony of Mr. Winfield, discredited by his great interest and by the qualities of mind which affect his accuracy as a witness, to which I have referred, might be a totally insufficient basis upon which to establish the first proposition of the complainant’s case, viz., that the services were rendered not gratuitously and not in reliance merely upon the good will, of Captain Cosgrove to be manifested in a testamentary gift, I still think that this testimony is Strongely corroborated by all the probabilities in the case and by the conduct of the parties abundantly proved by impartial witnesses.

When the lot in Congress street Avas selected by Mrs. Win-field and Captain Cosgrove, in 1881, and the house was built upon it, and the Winfields moved into it and maintained, as before, a room and home for Captain Cosgrove whenever he desired to come, then, for the first time, the compensation which Mrs. Winfield was to receive was definitely fixed between the parties and Mrs. Winfield went on performing the contract on her part in reliance upon the promise of'Captain Cosgrove to leave this house and lot to her by his last will. This promise was repeated frequently, according to the testimony of some of the witnesses, and Mrs. Winfield herself was allowed to retain the possession of the will from a time shortly after its execution until 1896 or 1898, a period of twelve or thirteen years.

In 1887 or 1888 — I think it was in the fall of 1887' — Captain Cosgrove was obliged to abandon his position as captain of the tugboat on account of his infirmities, and he does not appear to have been actively engaged in business at any time thereafter until his death in January, 1899. He took up his permanent residence with the Winfields in the Congress street house. He then proposed, according to Mr. WinfiekTs testimony, that inasmuch as the Congress street house was too large and the character of the neighborhood had changed, it would bo well for Mrs. Win-field to select a location elsewhere in the city of Newark upon which he (Captain Cosgrove) would build another house. This plan was carried out. Mrs. Winfield selected a plot in Milford avenue. Mr. Winfield negotiated a sale of the Congress street house and lot for $4,775. The family moved into a house in Baldwin street, which Mr. Winfield rented, where they remained about six months, while the new house in Milford avenue was building. Mr. Winfield testifies to conversations between himself, his wife and Captain Cosgrove, in which Captain Cosgrove stated most positively that the Milford avenue house should be substituted in his will for the Congress street house. The lot in Milford avenue was conveyed to Captain Cos-grove, precisely as the Congress street lot had been conveyed, and in like manner Captain Cosgrove contracted for the erection of the dwelling-house upon it and paid the cost thereof. The house and lot appear to have been less valuable than the Congress street property, the total cost being $3,600, or at most $4,000.

The proofs establish, beyond all doubt, that, while the Milford avenue house was building and subsequently, Captain Cos-grove stated most positively to a number of disinterested witnesses, who were not in any way impeached, that the house belonged to Mrs. Winfield, or to Minnie, as he called her; that he had built it, or provided the money for its erection, but that it belonged to her. These statements appear’ to have led some persons to believe that the title to the property was actually vested in Mrs. Winfield, and they seem to me more natural and apt as the expression of the idea in Captain Cosgrove’s mind that Mrs/ Winfield had a right to the property which his money had paid for rather than of the idea that he intended, upon his death or at some time, to make a gift of the property to her as a recognition of kindness which he had received from her.

Mr. Hobby, one of the carpenters who built the Milford avenue house, whose impartiality and entire credibility are not questioned, testified positively that Captain Cosgrove told him that he was to do whatever Mrs. Winfield wanted to have done. He said, “I am building the house for her.”

Mr. Searing, a bookkeeper, an intelligent and impartial witness, testified that at a little entertainment at the Milford avenue house, after the family had moved in, the subject of the house and its dimensions, &c., was under discussion, and that Captain Cosgrove said: “This house belongs to' Minnie, but my money built it, or paid for it.” The witness received the impression that Mrs. Winfield was then the owner of the house.

Mrs. May Sweeney, a friend of the Winfield family, but not related or apparently under -any obligations to them, testified that before her marriage, when she was a young girl, she was visiting the Winfield family at their home in Milford avenue, when Captain Cosgrove also was a visitor. This was after Captain Cosgrove had left .the Winfields and established his permanent home in Elizabethport. The incident took place some time in the year 1894, or possibly 1895. The witness at the time was about fifteen years old and admits that she was inquisitive in regard to the ownership of the Milford avenue bouse, having heard that the property belonged to Mrs. Win-field. Accordingly, she put the question directly to Captain Cosgrove whether the house was his. He said: “No, it was Mrs. Winfield’s house.” The witness, with youthful inquisitiveness and impertinence, repeated her question until Captain Cos-grove showed some temper and got up and walked away.

The conduct of Captain Cosgrove is all consistent with the claim of the complainant, to the effect that she began rendering services to Cosgrove in reliance upon his promise to compensate her, although the promise may have been too indefinite for enforcement in any court — that when a house and lot had been largely, if not entirety, earned by many years of service, the same was provided for Mrs. Winfield’s use; that soon after Captain Cosgrove made his will, not only devising this house and lot to Mrs. Winfield, but also making her a substantial gift in money; that later the Milford avenue house was substituted for the former one and that both parties to the original bargain agreed that this Milford avenue house and lot should go, upon Captain CosgTove’s death, to Mrs. Winfield, as the full measure of the compensation which then she had earned. Just as in the will of 1885, Captain Cosgrove had made a pecuniary legacy, recognizing the. inadequacy of the' devise to compensate Mrs. Winfield, so it may very well be that the Winfields relied upon similar testamentary action by Captain Cosgrove on their behalf after his obligation to them had been largely' increased.

The board which probably was included in the original contract, plainly was such board as Captain Cosgrove would naturally wish to receive for about one day in the week upon the necessary, occasion of his visits at the Winfield house in order to attend to his -bookkeeping business with Mrs. Winfield. After 1887 it may be that Mr. Winfield gave Captain Cosgrove five years of continuous board and lodging in his family from motives of friendship or from expectations of a legacy, or from a desire not to imperil the performance by Captain Cosgrove of his obligation to leave, first, the Congress street house, and then the Milford avenue house, to Mrs. Winfield by will. So far as Captain Cosgrove’s continuous board and lodging for the last fívs years oí his stay with the Winfields was not within the terms of the bargain to devise the house and lot to Mrs. Win-field, Mr. Winfield appears to be without remedy. Apparently all, or very nearly all, his claim, if there was a claim, was barred by the statute of Imitations at the time of Captain Cos-grove’s death.

One circumstance proved in the ease would tend to discredit the- claim of Mrs. Winfield, if we were dealing with people who had not upon any theory of the case behaved in a manner contrary to those rules of foresight and prudence which ought to guide men, and even women, in all important business transactions. Such rules, however, are frequently disregarded when old friendship and confidential relations built thereon exist between the parties concerned. It appears that Mr. Winfield, who was the man of the house and the breadwinner of the family, to whom, as I have said, any legal liability of Captain Cosgrove would exist on account of the item of board, paid to Captain Cosgrove a sum of money during the whole period of the occupancy of the Congress street house and the Milford avenue house, down to the death of Captain Cosgrove, which amounted to about $250. a year. This money, Mr. Winfield says, was not paid as rent, but was a sort of contribution fixed upon between the Winfields and Captain Cosgrove as an equivalent of the "running expenses’’ of the property. As a matter of fact, this sum about equals the taxes on the Milford avenue house and the insurance and five per cent, upon the cost. The expense of repairs and other charges were borne by the Win-fields.

When, with the full consent of Mr. and Mrs. Winfield, the Milford avenue property was substituted for the Congress street lot, in 1888, I think the proofs show that all parties accepted the Milford avenue property as the house and lot which Captain Cosgrove agreed to give Mrs. Winfield by a devise in his will at the beginning of the business relations between them. When the compensation under the bargain was made definite, in 1881, by the purchase of the Congress street property, and especially when Captain Cosgrove made his will, in 1885, with the full knowledge of Mrs. Winfield, devising that property to her, and then allowed her to take possession of the will, the whole bargain, as I have heretofore stated, which was theretofore indefinite, became fixed and certain, and in reliance upon it Mrs. Winfield proceeded with the discharge of her duties under her contract. For about seven years after the purchase of the Congress street propertjr,' and the apparent appropriation of it by Captain Cosgrove to the satisfaction of his agreement, Mrs. Winfield proceeded with the more or less laborious work of keeping Captain Cosgrove’s books and making his reports. For about two years after the will was made she continued this work. When Captain Cosgrove quit his active business, about 1887, the greater part, but not all, of Mrs. Winfield’s services as bookkeeper and business agent apparently terminated, but there is evidence that she still rendered services from time to time, in perhaps comparatively unimportant matters, down to the time, or almost to the time, of Captain Cosgrove’s death. However this may be, while the bookkeeping may have ceased in 1887, from that time'down to 1893, a period of five or six years, Captain Cosgrove, as we have seen, was boarded, lodged, fed and cared for as a member of Mr. Winfield’s family.

I do not believe that Captain Cosgrove was guilty of the meanness of holding out to these people a glittering expectation of a substantial testamentary gift as the reward for their services and compensation for the home with which they gratuitously supplied him, while he craftily intended to defeat that expectation and receive, without rendering any compensation, all the benefits which these poor people were conferring upon him. No such position was taken by counsel for the defendant in the argument. If such a fraud had been perpetrated, I do not stop to inquire whether this court, or any court, could give the complainant any relief. The whole history of the relations of these people strongly indicates that from the very beginning of their relations, in 1872 or 1873, down to the death of Captain Cosgrove, in 1899, the intention was, as Mr. Winfield distinctly testifies, that while the house and lot should be furnished to Mrs. Winfield when Captain Cosgrove became able to make the necessary expenditure, tire final conveyance of the house and lot was to be effected by Captain Cosgrove’s will. The arrangement by which Mr. Winfield paid the fixed charges of the residence properties and about five per cent, upon Captain Cos-grove’s outlay, accords with the theory that the compensation was to be by will.

In 1893 Captain Cosgrove removed from the Winfield house and went to live at the house of Mrs. Brown, a sister of Mrs. Winfield, at Elizabethport, where he boarded until his death, in January, 1899. It does not appear that this removal was caused by any estrangement between the Winfields and Captain Cosgrove. He repeatedly visited the Winfields’ house and it appears that his room was always kept ready for him, and that no boarder was taken into the Winfield family on that account. A most affectionate letter is produced, written by Captain Cos-grove to young Winfield, dated July 5th, 1894. When Captain Cosgrove died, his trunk, where he kept his papers, was opened and examined, but no will was found. Mrs. Brown testified that he stated to her, -presumably not very long before his death, that he had destroyed the will. He had, in 1896 or 1898, procured the will from Mrs. Winfield’s house. The only testimony which we have on the subject indicates that he took the will at that time, with the knowledge and consent of Mrs. Win-field, together with some other papers of value which belonged to him, because they were then in the house of the Winfields, in Newark, where they were not entirely safe, while the Winfields were staying at Ocean Grove.

I do not think that it is a matter of much consequence what took place between the Winfields and Captain Cosgrove in regard to this will after 1893. If Mrs. Winfield is entitled to a decree in this case, she would have been entitled to it in 1893 if Captain Cosgrove had then died intestate, and before dying had destroyed his will with intent to defeat Mrs. Winfield’s claim. There is no evidence to suggest that if Mrs. Winfield had a right, in 1893, to the Milford avenue property as the compensation for the services which she had rendered to Captain Cosgrove and the board in her family which Captain Cosgrove had enjoyed, she ever lost that right by anything that occurred thereafter.

The whole conduct of Captain Cosgrove in dealing with both the Congress street house and the Milford avenue house discloses that it was his distinct purpose to hold the title to each of these properties during his life under his own control — that in each case the house and lot should remain his property until it should pass to Mrs. Winfield upon his death, by his will. It might be contended, although there is no evidence on the subject, that what the Winfield family -paid out to all parties in connection with their occupancy of the Congress street house and the Milford avenue house amounted to a low rent for the same. If for this class of property a five per cent, net return to the landlord is somewhat below the market rate, it still is true that Captain Cosgrove was satisfied with the interest on his investment. The arrangement seems to have been that Mrs. Winfield was not to receive the compensation for her services until Captain Cosgrove’s death. During the lifetime of Captain Cosgrove the one party continued, indefinite^, giving what was of substantial pecuniary value. The other party received these benefits through all these years for which he was bound to make compensation, but the compensation was fixed, first indefinitely as a house and lot situated somewhere, and then distinctly and definitely as a particular house and lot. I think that it is quite plain that, apart from the definite compensation agreed upon between the parties, there was an expectation on the part of Mrs. Winfield, and at one time an intention on the part of Captain Cosgrove, that he should recognize the insufficiency of the compensation agreed upon in the shape of a house and lot for services of so much greater value in an appropriate manner voluntarily, by giving Mrs. Winfield a substantial legacy. This is precisely what he did in 1885. He left Mrs. Winfield a house and lot, worth $4,775, and $2,000 in money, making $6,775 in all. This conduct of Captain Cos-grove accords with the testimony of young Mr. Winfield, to the effect that at a later period when his obligations to the Win-fields had still further increased, Captain Cosgrove declared that he regarded that what Mrs. Winfield had done for. him was worth $8,000.

Whatever may have been the legal or equitable rights existing between Captain Cosgrove and Mrs. Winfield prior to .1888, in my judgment, when the Winfield family took possession of the Milford avenue property, there was then in existence a complete, definite, oral agreement between Mrs. Winfield and Captain Cosgi’ove, to the effect that, in -order to compensate Mrs.' Win-field for her services as bookkeeper during fourteen or fifteen years,'which services had then beeix concluded, he (Captain Cosgrove) would give her the Milford avenue property by his will. I think, also, that fixe incidental board, to the extent of not more than one day in the week, which Captain Cosgrovehad received from the Winfield family, was included within the compensation as agreed upon. Recognizing fully the safe rule which requires such a contract to be clearly proved, in my opinion, the proofs in this case come fully up to the required measure.

Mrs. Winfield relied upon this promise of Captain Cosgrove from 3888 uixtil his death, eleven years later, and if during the last four or five years of his life she may have entertained a fear that he would not keep his word and perform his promise, which the evidence does not establish, the fact remains that long before any such notice could have come to her, while she had the captain’s will in her possession, which gave her the Congress street properly axxd undoubtedly a legacy of $2,000 as well, her claim for services on a quantum meruit had become barred by the statute of limitations.

The last question to be discussed is whether the legal remedy of Mrs. Winfield is adequate.

We have not here a ease where the contract was to compensate Mrs. Winfield for her services b3 a legacy, or b3^ a testamentary dispositioxx of a nature undisclosed. In such case it may be that neither the statute of limitations nor the statute of frauds would, bar an action brought now by Mrs. Winfield on the contract against the administratrix of Captain Cosgrove for the recovery of fair compensation for all services and all board which may have been rendered or- supplied in execution of the contract on her part. We have most distinctly a case of a promise to compensate Mrs. Winfield by a devise of land. Such a promise is within the statute of frauds. Browne St. Fr. (5th ed.) § 263; Johnson v. Hubbell, 2 Stock. 332; Gould v. Mansfield, 103 Mass. 408.

There is not the slightest evidence in this case that Captain Cosgrove ever made any promise to- compensate Mrs. Winfield for her services or to compensate Mr. Winfield for five years of board and lodging by a legacy or by any testamentary disposition except this devise — first, of the Congress street property, and then of the Milford avenue property. Any action at law, therefore, which Mrs. Winfield could now maintain would be con•fined to an action on the common counts to recover the value' .of her services, and could not be brought upon any contract of Captain Cosgrove to render her compensation by his will. Such an action, as we have seen,, would be met by the statute of limitations as a complete bar.

Any action which Mr. Winfield might bring to recover compensation for the five years of board preceding 1893 would, in like manner, meet the bar of the statute of limitations.

Let us suppose it to be possible that Mrs. Winfield might maintain an action at law against Captain Cosgrove’s administratrix and then in aid of such suit exhibit to- this court a state of facts warranting an injunction prohibiting the defendant from setting up the statute of limitations as a defence. No such possibility has been suggested in the argument; no testimony has been taken with such a possibility in view. The complainant, it seems to me, cannot be deemed to have an adequate remedy at law when she can only pursue such remedy effectively in case she first succeeds in a doubtful' preliminary suit in equity for an injunction, which no do-ubt would be hotly contested.

In view of the years 'of faithful- service which Mrs. Winfield rendered to Captain Cosgrove — bringing..to -the management of his business the education, intelligence-and skill' as a scrivener .and bookkeeper which he did not possess, and without which he might not have been able to maintain his responsible and lucrative position, and, in view of the promises and statements of Captain Cosgrove, upon which Mrs. Winfield relied for many years, and in reliance upon which she has lost her legal rights, or at least allowed their enforcement to become difficult and expensive — it seems to me that to turn her out of this court now would amount to the accomplishment of a fraud.

Nor do I think that if Mrs. Winfield were able to maintain an action at law for the recovery of -compensation to be fixed by a jury for all the services as bookkeeper which she rendered to Captain Cosgrove, and if Mr. Winfield were able to maintain a similar action for the five years of board, the result would accord with justice. The relations of these people were peculiar. Any assessment of damages or fixing of compensation by a jury would to a large extent be guesswork. The parties made their own assessment and fixed the compensation which Mrs. Win-field was to receive. It seems to me that it is equitable and just, both to Mrs. Winfield and to the estate of Captain Cos-grove, that she (Mrs. Winfield) should receive the very thing which she and Captain Cosgrove agreed upon as the measure of her compensation after all her services practically had been rendered. Assuming that the Winfields did not agree to board and lodge Captain Cosgrove indefinitety after 1888, because of the devise which he was going to make to Mrs. Winfield in compensation for what she had already done, and further assuming that Mr. Winfield did not in any way receive compensation for the five jrears’ board-which he furnished to Captain Cosgrove from 1887 or 1888 to 1893, the true conclusion, I think, is that inasmuch as Mrs. Winfield during all that period had the will in her possession which gave her a legacy of $2,000, both Mr. and Mrs. Winfield were entirety willing to allow their generous benefactor to have his home with them. Captain Cosgrove seems to have broken down in health in 1887 and the Winfields testify that he had several illnesses. It is not surprising that under these circumstances the matter of the captain’s board was never made the 'subject of a bargain, and that the Winfields should have been led to give their old friend a home with them without charge and in reliance upon this friend’s testamentary benevolence.

If Mr. Winfield finds himself in the position of having supported Captain Cosgrove for five years under circumstances which prevented him from recovering compensation from Captain Cosgrove at any time, or now finds himself with what was originally a just claim against Captain Cosgrove for compensation barred by the statute of limitations, that is a matter which does not in airy way affect the claim of Mrs. Winfield preferred in this case.

The. alternative prayer of the bill to the effect that in case specific performance of the contract to convey the Milford avenue house cannot be enforced, then the amount justly due to Mrs. Winfield may be ascertained by this court in this suit and decreed to be paid out of the Cosgrove estate, may be noticed for the purpose of pointing out that neither the bill nor the testimony in this cause affords any basis for any such relief. The bill does not charge that Captain Cosgrove obtained the valuable services of Mrs. Winfield by any fraudulent practice, or that at any time while those services were being rendered he did not fully intend to make ample compensation for those services in accordance with his agreement and Mrs. Winfield’s expectations. The case, therefore, is radically different from Eggers v. Anderson, 18 Dick. Ch. Rep. 264. In the class of cases to which this belongs it is very properly said that specific performance is granted, because to deny it would accomplish a fraud. Fraud is not redressed, but prevented, by the decree of specific performance.

In my opinion the complainant has no adequate remedy, either in a court of law or a court of equity, unless she can in this cause obtain a decree specifically enforcing the promise which I am satisfied Captain Cosgrove made to her, to the effect that the Milford avenue property should belong to her, at his death, as the compensation for the years of valuable service which she rendered to him.

I shall advise a decree for the complainant as above indicated, but, under the circumstances, without costs.