text:
    St. Mary’s Church, Burlington, v. Samuel W. Stockton.
    Specific performance, at the instance of a vendor, will not be decreed, unless his ability to make a title which will secure to the purchaser the full enjoyment of the properly, free from embrrrassment, be unquestionable.
    Where the purpose to which the money arising from the sale of lands by a trustee is required to be applied is of a definite and limited nature, it seems, that the purchaser is bound to see to the proper application of the purchase money.
    Liquidated damages.
    On the 25th of January, 1709, by a grant from Queen Anne, reciting that it will tend to the welfare of any people, and will be conducive to "the establishment of the true religion, and the promotion of piety and virtue, that all possible encouragement be given for the erecting and building of convenient places for the preaching of the word of God and administration of the Holy Sacraments, according to the doctrine and liturgy of the Church of England, and, also, that a sufficient maintenance be provided for an Orthodox clergyman to live and reside amongst them j and reciting that the “ Rev. Mr. John Talbot, minister of the Church of St. Mary’s, ■ in our town of Burlington,” Daniel Coxe, (and others, naming them,) have, by their petition to Col. Richard Ingoldesby, our Lieutenant Governor and Commander-in-Chief of our Province of New Jersey, desired that they might have our Royal grant and charter enabling them to act as a Body Corporate by the name of the Minister, Church Wardens and Vestrymen of St. Mary, in Burlington; and that they might have power to receive gifts, to purchase lands and houses, to make leases, and to make such rules and orders for the disposal of their Church’s affairs as will be agreeable to the laws and constitutions of our Kingdom of Great Britain: the said Queen willed, ordained, constituted, appointed and granted, that the Rev. Mr. John Talbot, Master of Arts, and the minister of our town of Burlington for the time being, Robert Wheeler and George Willis, Church, Wardens of our said Church, and the two Church Wardens for the time being, Col. Daniel Coxe, Lieut. Col. Hugh Huddy, two of our Council for our said Province, Jeremiah Bass, Esq., our Secretary of our said Province, Alexander Griffith, Esq., our Attorney-General, Thomas Revell, (and others, naming them,) and their successors to be elected in manner as is hereafter directed, be, and forever hereafter shall be one body politique and corporate, in deed and in name, by the name of the Minister, Church Wardens and Vestrymen of the Church of St. Mary, in Burlington, and them and their successors, by the same name, We do by these presents, for us, our heirs and successors, make, ordain, constitute and declare one body politique and corporate, in deed and in name, to have community and succession perpetual, and that they and their successors, by that name, shall and may forever hereafter be persons able and .capable in the law to purchase, have', take, receive and enjoy, to them and their successors, messuages, lands, tenements, rents, liberties, privileges, jurisdictions, franchises and other hereditaments whatsoever, in fee and perpetuity, not to exceed the yearly value of ¿£300 sterling per annum; and also estates for lives or years, and all goods, chattels and things whatsoever, for the better support and maintenance of an Orthodox minister in the said Church and the promotion of piety and religion, and likewise the maintaining and keeping in good repair the fabrick of the said Church, and providing decent ornaments for the same ; as also full power to give, grant, bargain, sell and dispose of any of the said lands, either for term of years or in fee : Provided always, that such and so many lands of the full value of such as are sold be bona fide purchased and settled for the uses aforesaid ; and it gives to the said persons, and their successors forever, that, on Monday in Easter week, yearly, at some convenient place to bo by them appointed, of which notice shall be given by the minister on Easter day, between the hours of eight and twelve in the morning, to elect and choose, by majority of voices, two Church Wardens, and so many Vestrymen as shall be wanting to complete the number of twelve Vestrymen besides the two Church Wardens, out of the most substantial communicants of and in the said Church. It gives power to constitute, ordain and make any constitutions, laws, ordinances and statutes, not contrary to the laws of the kingdom of Great Britain and the present constitutions of the Church of England, and to make leases for their lives or 21 years, and also bargains, sales or grants in fee, upon the proviso aforesaid. And that “ our letters patents, or the inrolment thereof, shall be good, firm, valid and effectual in the law, according to ££ our Royal intentions herein before declared.” ££ In witness whereof we have caused these our letters to be made patents, and our seal of our said Province of New Jersey to be hereunto affixed. Witness our trusty, &c., Richard Ingoldesby, Esq., our Lieut. Governor and Commander-in-Chief in and over our said provinces of New Jersey and New York and all the territories and tracts of land depending thereon in America, and Vice Admiral of the same, &c., at Burlington, in our said Province of New Jersey, the twenty-fifth day of January, in , the eighth year of our reign, Anno Dom., 1709.
    ££ J. Bass, Secretary.”
    On the 29th Oct., 1712, John Tatham, of New York, and Mary his wife, by an indenture between them, of the one part, and C£ his Excellency Robert Hunter, Esq., Captain-General and Governor in Chief of the provinces of New York and New Jersey and the territories depending on them in America, &c., and one of the members of the Right Honourable the Society for the Propagation of the Gospel in foreign parts, of the other part,.for and in consideration of the sum of ¿£600 sterling to him the said John paid by the said Robert Hunter, granted, bargained, sold, enfeoffed, assigned and confirmed unto the said Robert Hunter, his heirs and assignees forever, all that certain tract of land at Burlington upon Delaware River, (describing it,) containing about fifteen acres; also all that lot called a water lot, (describing it) ; also a certain piece of meadow land, (describing it,) containing about ten acres; also, all that other two acres of meadow land, (describing it,) containing about two acres; together with the large mansion house upon the first mentioned tract of land, and other the houses, outhouses, &e. : To Have and to Hold" unto the said Robert Hunter, his heirs and assigns forever, to and for the sole and only proper use, benefit and behoof of the Right Honourable the Society for the Propagation of the Gospel in foreign parts, and of their successors and assigns forever, and to no other use or uses whatsoever.
    On the 13th of April, 1803, by an Indenture between “The Society for the Propagation of the Gospel in foreign parts,” of the one part, and the Minister, Church Wardens and Vestrymen of Saint Mary’s Ghurch, in the City of Burlington, in the State of New Jersey, of the other part, reciting, that the said party of the first part are seized in fee simple of the lots of land therein described (being the lots of land conveyed, as aforesaid, to Robert Hunter for their use); and that the lands and premises were originally designed by the said society for the support and maintenance of the Episcopal Church in the said city of Burlington ; but, since the separation of the Colonies from the Kingdom of Great Britain, have for the most part laid open and ■unproductive either to the said Society or to the said Episcopal Church; and that the Minister, Church Wardens and Vestrymen of the said Church have earnestly requested of the said Society to grant and convey the said premises to and for the use and maintenance of the said Episcopal Church in the city of Burlington ; the said Society for the Propagation of the Gospel in foreign parts, for and in consideration of the request aforesaid and of five shillings to the said society paid by the said Minister, Church Wardens and Vestrymen, did, “ according to their estate and interest in the premisos, and so far as they lawfully can ox may, but not further or otherwise,” grant, bargain, sell, enfeoff, &c., to the said Minister, Church Wardens and Vestrymen, and their successors and assigns, All, &c.: To Have and to Hold unto the said Minister, Church Wardens and Vestrymen, their successors and assigns forever, for the use and maintenance of the Episcopal Church in the city of Burlington aforesaid, and to and for no other use or uses whatsoever. And the said society for the propagation, &c., did by the said Indenture covenant and agree, to and with the said Minister, Church Wardens and Vestrymen, their successors and assigns, that they the said Minister, &e., their successors and assigns, should and might, at all times thereafter, have, hold, occupy, possess and enjoy the said premises, and the rents, issues, profits ana commodities thereof, without the let, suit, &c., of the said society for the propagation, &c.,. or their successors, or of any other person or persons whatsoever, anything having or lawfully claiming by, from or under them or any of them ; cc but it is hereby declared, agreed and understood, that nothing herein contained shall extend or be construed to extend to any warranty by the said society of the title or possession of or to the said premises herein conveyed or any part thereof.” “ In testimony whereof the said Society for the Propagation of the Gospel in foreign parts have hereunto affixed their corporate seal, at the palace of- his Grace the Lord- Arch-Bishop of Canterbury, situate at Lambeth, in the County of Surrey, in England, the day and year first above written.”
    On the 15th of September, 1847, an agreement was entered into therein stated to be “ between the Minister, Church Wardens' and Vestrymen of- St. Mary’s Church, of the city of Burlington, in the State of New Jersey, party of the first part, and Samuel Wesley Stockton, of- the city of Philadelphia, party of the second part,” witnessing, that the said party of the first part, for the consideration of $18,000, to be paid as-thereinafter mentioned, covenanted and agreed with the said Stockton, his heirs and assigns, that the said party of the first part should and would, on or before Oct. 2d of said year, grant and convey to the said Stockton, his heirs and assigns, all that certain lot of ground (describing it); also all that lot (describing it); which comprises all the right, title and interest of the said party of the first-part in and to the ground within the above boundaries, excepting, nevertheless, to the owners of lots conveyed by the said party of the first part to Benjamin Shepherd and others the free use and privilege of fifteen feet wide alley running eastwardly from St. Mary’s street towards Tatham street, as laid out on a map made some years ago by the said party of the first part; and the aforesaid premises to be free and clear of all incumbrance ; the said Stockton, on the execution of said deed, to pay $3,000 and give his bonds and warrants and mortgages for the balance, &c., and that said Stockton, for himself, &c., promised and agreed with the said party of the first part, their successors and assigns, that on the execution of the deed as aforesaid he would pay the said $3,000 and give his bonds and mortgages as aforesaid, and also agreed to let the purchasers of lots No. 1, 2, 3 and 4 on Pearl street, sold this day at auction, have them at the price sold for on the terms and conditions named at the sale. And, for the performance of said covenants and agreements on the part of either party, the said party of the first part bind themselves, and their successors in office, unto the other party and their heirs, in the sum of $5,000, which sum, it is hereby agreed between the parties, shall be the stipulated damages to be paid by the party delinquent, to the other performing his or their part of the agreement, and now hereby agreed, fixed upon and stipulated as a liquidated satisfaction to be made and paid in case of the breach of this agreement by either party to the other performing.
    This agreement is signed by “ G. W. Doane, Rector of St. Mary’s Church,” with a seal affixed to his name, having a device on it, and by the said Stockton, with his seal affixed.
    An instrument is exhibited in the cause, dated September 30, 184T, “ Between the Minister, Church Wardens and Vestrymen of St. Mary’s Church, in the city of Burlington, in the State of New Jersey, party of the first part, and Samuel Wesley Stockton, of, &c., party of the second part,” witnessing that the said the Minister, &c., in consideration of $18,000 to them paid by the said Stockton, have granted, bargained, sold, &c., and do grant, bargain, sell, &c., unto the said Stockton, his heirs and assigns, all those certain lots, &c., being parts of two lots of ground which the Society, for the Propagation of the Gospel in foreign parts conveyed to the said Minister, Church Wardens and Vestrymen of Saint Mary’s Church, aforesaid, in fee, by deed dated April 13, 1803, and recorded on the 20th September, following, in the Clerk’s office of the County of Burlington, together with all the ways, waters and appurtenances thereunto belonging, and all the estate, right, title, interest, property, possession, claim and demand whatsoever of them the said Minister, &e.-, in law, equity, or otherwise howsoever, of, in and to the same and every part thereof; to Have and to Hold unto the Said Samuel Wesley Stockton, his heirs and assigns forever. And the said Minister, &c., for themselves and their successors, do covenant and agree to and with, &c., that at the time of the sealing and delivering hereof they were seized in their own right of an absolute and undefeasible estate in fee simple, of and in the said premises, and have good right, full power, and sufficient authority in the law, to grant, bargain, sell and convey the same to the said Stockton, his heirs and assigns forever, according to the true intent and meaning of these presents j and that it shall and may be lawful for' the said Stockton, his heirs and assigns, at all times, hereafter, forever, peaceably and quietly to Have, Hold and enjoy -the said premises, without the lawful let, suit, &c., of the said the Minister', &c., their successors or assigns, or of any other person or persons lawfully claiming or to claim the same; and that the said the Minister, &c., all the said granted premises unto the said Stockton, his heirs and assigns, and against every person or persons lawfully claiming or to claim the same, will warrant and forever defend.
    In witness whereof the said the Minister, Church Wardens and Vestrymen of St. Mary’s Church, party hereto of the first part, by their President and Rector, George Washington Doane, hath hereunto set his hand and affixed the seal of said Corporation, the day and year first written.
    (Signed) G. W. Doane,
    With the same seal as that affixed to the agreement.
    Signed sealed and delivered ) in presence of j
    Franklin Woolman.
    The acknowledgement of the execution of the deed is as follows : On the 80th of September, 1847, before me Franklin Woolman, a Commissioner for taking the acknowledgment of deeds, personally appeared George W. Doane, known to me to be the President and Rector of the Minister, Church Wardens and Vestrymen of St. Mary’s Church, in the city of Burlington, who, I being satis- ‘ fied that the said “ the Minister, Church Wardens and Vestrymen of St. Mary’s Church, in the city of Burlington,” are the grantors named in the above Indenture, and the contents thereof having been by me first made known to him, acknowledged that he signed the said deed, caused the corporate seal of the said Corporation to be thereto affixed, and delivered the said deed as the voluntary act and deed of the said the Minister, Church Wardens and Vestrymen of St. Mary’s Church, in the city of Burlington, by authority and in execution of a resolution of the Vestry of said Church or Corporation him thereunto lawfully empowered for the uses and purposes therein mentioned.
    The only testimony in the case is, that Stockton did not attend at the time and place fixed for the delivery of the deed.
    The bill is filed to compel a specific performance by him of the said agreement.
    The defence set up by the answer is, that the complainants are not able to make a good title.
    P. D. Vroom for the complainants.

      Browning and W. Halsted for the defendant.
    They cited Elm. Dig. 80 Pl. 3; 2 Black. Com. 336 ; Shelford on Mortmain and uses, 59, 296, 7, in 37 Law. Lib. 296; 4 Kent’s Com. 307; Angel & Ames on Corp. 87; 2 Kent’s Com. 226; 3 Pick. Rep. 237, 8; 1 Penn. Rep. 49; 6 Conn. Rep. 304; Story’s Eq. Jur. sec. 750 et seq.

   The Chancellor.

By a charter from Queen Anne, dated January 25, 1709, reciting, that, “the Rev. Mr. John Talbot, minister of the Church of St. Mary’s, in our town of Burlington, Daniel Coxe, (and others, naming them,) have, by their petition, desired that they might have our Royal grant and charter enabling them to act as a body corporate by the name of the Minister, Church Wardens and Vestrymen of St. Mary, in Burlington,” the said Queen willed, ordained, fye., “ that the Reverend Mr. John Talbot, the minister of our town of Burlington for the time being, Robert Wheeler and George Willis, Church Wardens of our said Church, and the two Church Wardens-for the time being, Col. Daniel Coxe,(and others, naming them,) and their successors to he elected ip manner as is .hereafter directed, be,and forever -hereafter shall be, one body politic and corporate, in-deed.and in name, -by tbe name of the Minister, Church Wardens and Vestrymen of the Church of Saint Mary, in Burlington, and .them and their successors,-by the same .name,,' TO do by these presents, for us, our heirs, and successors, make, ordain, &c., one body politic and corporate, to :have community and.succession -perpetual, -and that they, and-their successors, by that name shall .and may forever hereafter, be capable to purchase,, have, -take, -receive and enjoy, to them .and their successors, messuages, lands, in fee and perpetuity, (&c.,) for thebettensupporf .and maintenance of an -Orthodox minister in the-said Church, and the promotion of piety and -religion, and likewise the maintaining and keeping in repair the. fabric of the said Church, ‘and providing decent -.ornaments for the same, as also full power to give, grant, bargain, sell and dispose of any of the-said lands, either for term of years or in fee: Provided always that such and so many lands of the full value of such as are Sold he bona fide purchased and settled for the uses aforesaid and giving to the .said persons, and their successors forever, the' right, on notice, to .elect .and choose, by majority of voices, two Church Wardens, and ap many Vestrymen as shall be wanting to complete the number of twelve Vestrymen, besides tbe two Church Wardens.

On tbe 29th October,. 1712, John Tatham, of New York, and Mary bis wife, by'ian Indenture between them, .of the one .part, apd His Excellency Robert Hunter., Escp, Captain General .and Governor in Chief of the Provinces of New York and New Jersey, and one of .the members .of the Right Honourable the Society for the Propagation of the Gosp.el in foreign parts, of the other part, conveyed to .tbe said Robert Hunter, his heirs and assigns forever, .certain lands .at Burlington upon Delaware River, (describing them.) To Have and to Hold unto the said Robert Hunter, his heirs and assigns forever, to and for the Sole and only -proper use, benefit .and .behalf of tbe Right Honourable tbe Society for tbe Propagation of the Gospel in foreign parts, and of their successors and assigns forever, and to no other use or uses whatsoever.

On the 13th April, 1803, by an Indenture between the said li the Society for the Propagation of the Gospel in foreign parts,” of the one part, and the Minister, Church Wardens and Vestrymen of Saint Mary’s Church, in the city of Burlington, in the State of New Jersey, of the other part, reciting, that the said lands were originally designed by the said Society for .the support and maintenance of the Episcopal Church in the said city of Burlington, but, since the separation of the Colonies from &c., have for the most part laid open, and unproductive, either to the said Society or to the said Episcopal Church; and that the Minister, Church Wardens and Vestrymen of the said Church have earnestly requested of the said Society to grant and convey the said lands to and for the use and maintenance of the said Episcopal Church in the city of Burlington, did, “ according to their estate and interest in the premises, and so far as they lawfully can or may, but not further or otherwise,” convey the said lands to the said Minister, Church Wardens and Vestrymen, and their successors and assigns. To Have and to Hold unto them, their successors and assigns forever, for the use and maintenance of the Episcopal Church, in the city of Burlington aforesaid, and .to and for no other use or uses whatsoever.

On the 15th September, 1847, an instrument of writing, under seal, purporting to be an agreement between “ the Minister, Church Wardens and Vestrymen of St. Mary’s Church, of the city of Burlington, in the State of New Jersey, of the first part, and Samuel Wesley Stockton, of the seeond part, was executed, by which the said party of the first .part agreed to convey to the said Stockton, his heirs and assigns, certain .parts of the said lands, (describing the parts,) and then follows this clause in the agreement, which comprises all the rihgt, title and interest of the said party of the first part in and to the ground within the above boundaries, excepting, nevertheless, to the owners of lots conveyed by the said party of the first part to Benjamin Shepherd and others the free use and privilege of a 15 feet alley way, running, áre.the aforesaid premises to be free and clear of all incumbrance; and the said Stockton agreed, that, on tbe execution of tbe deed as aforesaid, he would pay, &c.; and, for the performance of the said covenants and agreements, each party was, by the said instrument, bound to the other in the <sum of $5,000; which sum it was thereby agreed should be the •■stipulated damages to be paid by the party delinquent to the other performing his or their part of the agreement; the said sum being hereby agreed, fixed upon and stipulated as a liquidated satisfaction to be made and paid, in case of the breach of the said agreement by either party, to the other performing. The agreement fixed a time and place for the delivery of the deed.

The. manner in which this agreement was signed, and the nature and contents of the deed which was prepared as a fulfilment of the agreement on the part of the party thereto of the first part, and the manner in which the said deed was executed and acknowledged, will be found in the statement of the case given by the Reporter.

Stockton did not attend at the time and place fixed for the delivery of the deed. The bill is exhibited to compel a specific performance by him of the said agreement.

The defence set up by the answer is, that the complainants are not able to make a good title. And the principal point discussed on the argument of the case was, whether the complainants could make a good title.

The first ground taken by the Counsel of the defendant is, that the deed of April 13, 1803, from ££ The Society for the propagation of the Gospel in foreign parts,” to The Minister, Church Wardens and Vestrymen of Saint'Mary’s Church, in the city of Burlington,” gives the land, not to the use of the said Minister, &c., of St. Mary’s Church only, and, therefore, that the said Minister, &c., of St. Mary’s Church are not, as contended by the Counsel of the complainant, both trustee and sole cestui que trust; but gives the land to the said Minister, &c., of St. Mary’s Church, their successors and assigns forever, for the use and maintenance of the Episcopal Church in the city of Burlington, including, not merely the parish of St. Mary, or the said Minister, &e., of St. Mary’s Church, but all other Episcopal parishes or congregations that are, or may in time to come be established in the city of Burlington; and that, therefore, the defendant should not be compelled, with notice of this trust, derived from the title deed of the complainants, to take a deed for the lands from the complainants, under th said agreement between them and him.

This construction of the said deed strikes my mind with much force; and, without saying that it is indisputably correct, it might be sufficient, of itself, to induce a denial of the specific performance prayed by the complainants, on the ground, that a specific performance, at the instance of a vendor, will not be decreed, unless his ability to make a title which will secure to the purchaser the full enjoyment of the property, free from embarrassment, be unquestionable.

But there is another embarrassment to which the defendant would be subjected if he should be compelled to take a title from the complainants. The charter from Queen Anne to “ The Minister, Church Wardens and Vestrymen of the Church of Saint Mary, in Burlington,” limits the power to sell lands, therein given, by the proviso, that such and so many lands, of the full value of such as shall be sold, be bona fide purchased and settled for the uses declared in the said charter. Without examining particularly the doctrine as to the duty of purchasers to see to the application of the purchase money, and the distinctions which prevail on this subject, it is sufficient to say, that this proviso might be a serious embarrassment to a purchaser. He would be subjected to the issue of the question, whether the purpose to which the money arising from the sale is required to be applied be of a definite and limited, or of a general and unlimited nature. If the first, he would, as it seems from the authorities, be bound to see that the purchase money was applied to the purpose mentioned in the proviso. Story’s Eq. Jar., section 1127.

Again, by the agreement for sale and purchase, in this case, a certain sum is agreed, fixed upon and stipulated, as a liquidated satisfaction to be made and paid, in case of the breach of the said agreement by either party to the other performing. The parties have fixed their own measure of damages for breach of the agreement; and, whether the sum, from its amount, $5,000, should be considered by this Court as liquidated damages or only in the nature of a penalty, which I have not-now the means of determining, this -provision of the agreement shows that each party contemplated a resort to an action at law for damages, in case of therfailure of the other.to perform on his part.

The relief prayed by the complainants, is denied.

Order accordingly.


source: Caselaw Access Project

author: The Chancellor

license: Public Domain

text:
    In the matter of the lunacy of Robert Price.
    To obtain an order of reference to a Master to inquire whether one who had been declared a lunatic is restored &c., a petition of the person who had been so declared should be presented.
    Mr. P. J). Vroom

    read a petition of the Committee of the lunatic, stating that he was restored to his reason, and praying a reference to a Master to inquire whether he was restored, &c.
   The Chancellor

suggested that the petition of Robert Price should bo obtained.

Mr. Vroom assented; and his petition was afterwards obtained ; and the order of reference made.


author: The Chancellor.

text:
    Albert Hendry v. Thomas Quinan and John Whittaker.
    A bill for the foreclosure of a mortgage, dated May, 1849, given by T., stated, tba^W., in March, 1850, recovered a judgment against T., and made W. a party defendant. W. pleaded, that, in November, 1841, D. recovered a judgment against T., which remained unsatisfied, and that D. ought to have been made a party. The plea was overruled.
    The bill is for the foreclosure of a mortgage, dated May 9, 1849, given by Thomas Quinan to Richard Davis, for $50, with interest, payable May 1, 1850, assigned by Davis to the complainant.
    The bill states that, on the 20th of March, 1850, John Whit-taker, one of the defendants, recovered a judgment against Quinan, in the Common Pleas of Mercer, for $51.43 debt and $2.14 costs.
    The defendant Whittaker pleaded, that on the 9th of November, 1841, one John Davis recovered a judgment in the Supreme Court against Quinan, the mortgagor, for $1,000 damages, and $146.88 costs; which judgment remains of record in said .Supreme Court, uncancelled and unsatisfied; and that he, Whit-taker, is advised that, the said judgment being a lien on the premises mentioned in the bill, the said John Davis ought to be made a party in this suit.

      Beasley in support of the plea.

      S. R. Hamilton contra.
   The Chancellor.

The plea states, that the judgment of. John Davis, recovered in 1841, is unsatisfied, and a lien on the premises. The mortgage, then, on which the bill is filed is a second incumbrance, and Whittaker’s judgment is the third and last incumbrance. The second incumbrancer, the mortgagee, the complainant in this case, took his mortgage subject to the judgment of John Davis, and has a right to proceed on his mortgage, subject to that judgment, and without making Davis a party defendant ; and the subsequent incumbrancer, Whittaker, has no right to say he shall not so proceed.

If Whittaker claimed that the judgment in 1841 was satisfied, he might have such an interest in preventing the second incumbrancer, the complainant in this case, from proceeding in such a way that the property would be sold subject to the judgment in 1841. It might bring enough, sold subject to the first incumbrance, to satisfy the complainant, and not enough to satisfy him; and there might be collusion between John Davis and the complainant to the prejudice of Whittaker, to have the land sold subject to Davis’s judgment, and thus defeat Whittaker’s claim, when there was really nothing due on Davis’s judgment. The Court might in such case, upon proper allegations by Whittaker, direct Davis to be made a defendant.

But on the statement in the plea that Davis’s judgment, the first incumbrance, is still an incumbrance, Whittaker cannot oblige the complainant to make the first incumbrancer a party.

Plea overruled.


text:
    Isaac S. Mulford v. Thomas C. Williams and others.
    Where a bill for foreclosure sets out incumbrances held by defendants with sufficient particularity and their1 order of priority, and a decree pro. con. is taken, and a reference to a Master, the Master cannot, by issuing a summons to a defendant incumbrancer to appear before him, put such a defendant in a position to lose his rights, admitted by the hill and established by the decree p. c., by failing to attend the Master.
    In March, 1849, Isaac S. Mulford exhibited his bill of foreclosure, on a mortgage, dated November IT, 184T, given by Thomas C. Williams.
    The hill states, that, on the 2Tth of March, 1848, as the complainant is informed and believes, Joseph Franklin recovered a judgment, in the Common Pleas of the County of Gloucester, against the said Thomas C. Williams, for $632.30 debt, and #4 costs; which judgment remains unsatisfied, and a lien on the premises described in the said mortgage.
    That, on the 5th of April, 1848, the said Williams executed another mortgage on the same premises to William S. Doughton, for |300, payable, &c.; which is an incumbrance on the same premises.
    And that Charles Edwards recovered a judgment against the said Williams, &c., (stating it.)
    The hill prayed process against Williams, Doughton, Edwards and Franklin, and the process was duly served, returnable April 16, 1849.
    On the 20th of June, 1849, a decree pro con. was taken against all the defendants, and an order by which, after stating that the whole of the money secured by the complainant’s mortgage was not due, it was referred to a Master to ascertain what was then due on the complainant’s mortgage &c., and, also, the amount due, if anything, to the said Doughton, Edwards and Franklin, on their respective mortgage and judgments, and to report the order and priority of the said several mortgages and judgments, &c.
    On the 26th of June, 1849, the Master reported, that, after having summoned the parties to appear before him, he found, there was due to the complainant, for interest on his mortgage, f 18; that the principal sum, $300, is not yet due, &c.; that the complainant’s mortgage is first in order and priority. That there was due to Doughton, for interest on his mortgage, $18 ; that the principal sum secured by his mortgage is not yet due, &c.; and that said Doughton’s mortgage is second, in order and priority. That the judgment of Edwards had been fully paid.
    That it was satisfactorily proved before him, that the summons issued by him, directed to said Franklin, summoning him to appear before said Master on the date of the report, was duly served on said Franklin; but the said Franklin neglected to appear and prove his claim, if any he has against said mortgaged premises; and that, therefore, he, the Master, cannot report, what, or whether anything remains due to Franklin on his said judgment, or whether it has been entirely satisfied. He further reports that, under the circumstances of the case, the whole of the mortgaged premises should be sold.
    On the 5th of July, 1849, the solicitor of the complainant took a final decree, confirming the report, and decreeing the sale of the mortgaged premises, to pay the moneys due and to become due to the complainant and Doughton, respectively; and that a fi, fa. issue &c.; and that all the defendants stand debarred and foreclosed &c.
    On the 2?th of December, 1849, Franklin presented his petition, stating the filing of the said bill, and the contents thereof; that his judgment is wholly unpaid, and is the next incumbrance to the complainant’s; that he, before the mortgage to Doughton. was given, caused a fi. fa. against goods and lands to be issued on his judgment on the day of the entry of his judgment; and that the sheriff, the said Williams having no goods, levied his said execution on the mortgaged premises, whereby the petitio»er’s judgment became and is a fixed incumbrance, prior to the mortgage of Dougbton. That neither the petitioner nor Dough-ton appeared, pleaded, answered or demurred to the said bill of complaint.
    The petition then states the decree pro confesso and order of reference; and that the petitioner is advised, that so much of the said order of reference as directed the Master to ascertain the order and priority of the incumbrances was irregular; because their order and priority were expressly stated in the bill, and fixed by the decree pro confesso thereon; so that the Master could not rightfully change them.
    ' That the petitioner, relying on the correctness of said bill of complaint as to the order and priority of his judgment, and the decree pro confesso thereon fixing the same, did not appear before the Master.
    The petition then states the report of the Master and the subsequent-proceedings in the cause; and that the sheriff under the fi. fa. issued "out of this Court has advertised the mortgaged premises to be sold on the 20th of January, 1850.
    That the first knowledge or information the petitioner had of the said error or mistake in the said Master’s report and decree and execution was some time after the issuing of said execution,, and since the last term of this Court.
    That the said mortgaged premises are all the property of the said Williams levied on by the sheriff under the petitioner’s said judgment, except a lot of less than one-fourth of an acre, worth only about $40 or $50 ; and that the said mortgaged premises,, with said lot, will not, as the petitioner believes, produce sufficient to satisfy, all of the said three incumbrances.
    He prays, that the said report, decree and execution may be so amended or corrected that his judgment shall be directed to be paid next after the complainant’s mortgage and costs; or,, that the sheriff may be directed, after paying the amount due the complainant and his costs, to apply the residue of the proceeds of sale of the mortgaged premises to the payment of the petitioner’s judgment and his costs in this behalf; and for such further and other relief, &c.

      On this petition, an application was made to the Court, on notice, for an order pursuant to the prayer of the petition. And the Court, on the 2d of January, 1850, made an order that cause be shown why the relief prayed by the petition should not be granted; and that all proceedings on the execution issued out of this Court be stayed until the further order of the Court, and that both parties have leave to take depositions.
    Depositions were taken and exhibits made.

      Browning, for the petitioner,
    cited 2 Daniel’s Ch. Pr. 1221, 1358; 1 Ib. 569, 577, note; 3 Mylne & Craig, 183; Halst Dig. 230, sec. 4; Rev. Stat. 909, sec. 21.

      Dudley and P. D. Vroom,

    contra, cited 1 Harr. Ch. 420; 5 J. J. Marsh, 328; 2 Daniel’s Ch. Prac. 1232; 1 Halst. Dig. 236, 9; Pott’s Ch. Prec. 96, note.
   The Chancellor.

The Master could not properly change the order of priority of the incumbrances as given in the bill, and established by the decree pro confesso.

Franklin’s incumbrance was set out in the bill with sufficient particularity to enable the Master to report what was due upon it, and its order of priority •, and the decree pro confesso established it as an existing incumbrance.

The Master could not, by issuing a summons to Franklin to appear before him, put Franklin in a position to lose his rights, admitted by the bill and established by the decree pro con., by failing to attend the Master.

The Master should, either have reported the amount due Franklin, and the priority of his judgment to the mortgage of Doughton, or have reported only the amount due on the complainant’s mortgage; in which latter case a final decree could have been taken for the sale of tho premises under the complainant’s mortgage, with directions to bring the surplus into Court, to be disposed of &c.

The decree will be opened, that the report may be corrected.

Order accordingly.


text:
    Nancy G. Dougherty v. John Dougherty.
    On a bill for alimony and maintenance, a motion for alimony pendente lite and counsel fee for complainant’s counsel may be denied, if tlie case as it appears at the time of the making of the motion shows that there is no foundation for the bill.
    On a bill for alimony and maintenance, a motion was made, ©n the part of the complainant, for alimony pendente lite and counsel fee.
    Affidavits were read in support of the motion ; and the answer, and affidavits of other persons, against it.

      A. V. Schenck, for the motion,
    cited Saxton’s Ch. 386; 1 Green’s Ch. 459; 3 Ib. 171; 1 Halst. Ch. 389, 421; 4 Paige, 516, 643; 1 Edw. Ch. 108, 364, 441; 2 Paige, 108, 621; Rev. Stat. 924, sec. 10.

      H. V. Speer, contra.
   The Chancellor.

As the case now stands, on the pleadings and affidavits, it is apparent, I think, that there is no foundation for the bill. The affidavits on the part of the complainant going to show cruel treatment &c., which is the case made by the bilí, are not based on personal knowledge or observation; and are overcome by the affidavits on the part of the defendant. If, at a later stage of the cause, it should appear that the order now applied for should be made, the allowance can be ordered from this time or such other as the Court shall fix.

Motion denied.


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    The New York Annual Conference Ministers Mutual Assistance Society v. The Executors of Jane Clarkson.
    A bequest in a will was as follows: “ I give and bequeath unto the New York Methodist Conference Society for the support of old worn out preachers the sum of three thousand dollars.”

      Held, under the evidence, that “ The New York Annual Conference Ministers’ Mutual Assistance Society” was the society intended by the testatrix, and entitled to- receive the legacy.
    On the 12th of May, 1848, Jane Clarkson, of the city of New Brunswick, in this State, died, leaving a will, dated October 5, 1843, by which, among other bequests, she bequeathed as follows : “I give and bequeath unto the New York Methodist Conference Society for the support of old worn out preachers the sum of three thousand dollars.”
    The bill is exhibited by “ The New York Annual Conference Ministers’ Mutual Assistance Society,” against the executors of the will of Jane Clarkson for the recovery of this legacy. It states, that, as long ago as 1824, an unincorporated association existed in the Methodist Episcopal Church, within the bounds of the Ecclesiastical division in said Cburcb known, as the New York Annual Conference, .then comprising parts of the States of New York and Connecticut, entitled “ The New York Annual Conference Ministers’ Mutual Assistance Society,” the object of which was to raise funds for the relief of such of its, members, who were all Ministers and Preachers of the Gospel, none but Preachers, being permitted to be members, attached to and connected with said New York Conference, as were in necessitous circumstances through age, disease or other natural infirmity, as also the needy wives and children, widows and orphans of its members aforesaid. That afterwards, on the 14th of February, 1832, the said Association was incorporated by the Legislature of the State of New York, by the name of “The New York Annual Conference Ministers’ Mutual Assistance Socieiy.” That the Ministers of the Methodist Episcopal Church in the United States are, each, required to be attached to an Annual Conference, which meets yearly, and the name of which is applied to the local division comprehending the residences of the Ministers attached thereto ; the Ministers within certain limits being said to belong to the New York Annual Conference; and the division of the Church so established being likewise called The New York Annual Conference, in the ordinary language of members of the said Methodist Episcopal Church and of those acquainted therewith.
    That the testatrix was a widow, without children or very near relatives, and was in the habit of attending divine worship in the Methodist Church at New Brunswick aforesaid, and of associating with persons familiar with the Methodist Episcopal Church and the institutions attached to the same ;and thus became acquainted with the existence of the complainants as a charitable Society, and with the object thereof before stated; of which object she frequently spoke in terms of high approbation.
    That there was not, at the time of the making of said will, or of the death of the testatrix, nor had there ever been, any Society or Association, corporate or unincorporate, whose title or name was “ The New York Methodist Conference Society for the support of old worn out Preachers,” nor any Society or Association, corporate or unincorporate, called “ The New York Methodist Conference Society,” nor any Society or Association bearing any name more similar to either of said names than the name of the complainants ; nor was there, at the time of the making of the said will, or of the death of the testatrix, nor had there ever been any Society, corporate or unincorporate, of the members of the New York Conference of the Methodist Episcopal Church, which had for its object the expenditure of money for the support of old worn out Preachers, except the complainants ; nor was there any Society, corporate or unincorporate, composed of members belonging to the New York Conference aforesaid, having any title or name so similar to that by which the legatee of said legacy is described in said will as the Society who are the complainants in this bill.
    The bill charges, that the testatrix, by the name or description used in the will, intended the Society who are the complainants. That she intended to bequeath the said sum of $3,000 to a Society composed of persons belonging to, or the location of which was within the limits of the New York Annual Conference of the Methodist Episcopal Church, which had for its object the support of needy, superannuated Preachers of that Church, worn out by time and labor. That the complainants are such a Society, and the only one having that object composed of persons belonging to, or the location of which is within the limits of said New York Annual Conference. And the complainants submit, that the existing circumstances of the case, combined with the similarity of description, identify the complainants as the legatees intended; and that, unless the said legacy is decreed to the complainants, there is no Society entitled to receive it; and the charitable intent of the testatrix will utterly fail: no other Society haying asserted any claim to it.
    The complainants proffer a refunding bond, according to the statute.
    An answer was put in ; and depositions were taken and exhibits made on the part of the complainants.

      C. Parker, for the complainants,
    cited 2 P. Wms. 140; 5 Mason & Welsby, 363; 16 Conn. Rep. 201; Wigram on wills, pl. 59; 4 Barn, & Adolph. 500.

      Blauvelt and P. D. Vroom, contra.
   The Chancellor.

The evidence shows, that the Methodist Episcopal Church in the United States is divided into Conferences, Districts, Circuits and Stations; that the Ministers having charge of churches must belong to a Conference, which meets annually, called an Annual Conference; that there are territorial boundaries to which the term Annual Conference is applied, as The New York Annual Conference; The New Jersey Annual Conference; that the words “ Annual Conference ” are used to designate the local division of the Church, and are also used as meaning all the Preachers having charge of churches in 'that division of the Church. There is, then, in the Methodist '"Episcopal Church, a body known as The New York Conference. The will sufficiently describes this body as The New York Methodist Conference. As part of the corporate name of the complainants we have The New York Annual Conference.” This -is shown'by the evidence to be a body or division of the Methodist Episcopal Church. The words of the bequest sufficiently describe this New York Annual Conference.

The corporate name of the complainants denotes a Society of the Ministers of the New York Annual Conference for their mutual assistance. The words of the bequest denote a Society df the New York Methodist Conference, (that is of Ministers of thé New York ‘Methodist Conference,) for the support of Preachers.

Upon the evidence in the casej I have no doubt that the complainants are the legatees intended by the will.

Decree for complainants.


author: The Ordinary.

text:
    Between Mary Haring, widow of Isaac J. Haring, Appellant, and Rachel Van Buskirk and Bridget Banta, Respondents. On appeal from the Orphans’ Court of Bergen.
    . H- (Red intestate, seized of real estate, leaving a grandson, the only child of a daughter who was the only child of the intestate, and leaving a widow and two sisters. The grandson died shortly after the death of the intestate, and without issue. The Orphans’ Court of a County, on the application of the sisters, made an order .appointing Commissioners to set off to the widow her dower. On Appeal to. the Ordinary, it was contended, that the lands descended to the father of the intestate’s grandson, or that, at least, the question of title was so doubtful that proceedings to set off dower should not be had until the title should be established at law. The order of the Orphans’ Court was affirmed.
    Isaac J. Haring, deceased, late of the County of Bergen, died intestate, on the 29th of August, 1849, seized of real estate in the said County, leaving a grandson, John Demarest, the only child of Ann Eliza, who was the only child of the intestate, and leaving his widow, Maria Haring, and two sisters, Rachel VanBuskirk and Bridget Banta, and a son of a deceased brother him surviving. The grandson died shortly after the death of the intestate, and without issue.
    On the application of the sisters, the Orphans’ Court of the County of Bergen made an order appointing Commissioners to set off to the widow her dower in the said real estate.
    The appeal was from this order.

      A. O. Zabriskie,
    for the Appellant. The application before the Orphans’ Court was resisted on the ground, that the title of the sisters was disputed, and was doubtful in law, and that dower must be assigned by one who has right. My position is, that the jurisdiction of the Orphans’ Court to appoint Commissioners to assign dower is suspended when the title is in dispute in good faith. 2 Green’s Rep. 182. The title must be first settled at law; that the Orphans’ Court could not settle the title ; nor can the Ordinary on Appeal. A party whose title is in doubt has no right to disturb another in possession and claiming adversely in good faith. Demarest, the husband of the deceased daughter of the intestate claims the title. The question is, does Demarest take any interest in the lands, or does it go to the sisters of the intestate'? Rev. Stat. 338, sec. 3. The grandson is the person who died last seized. The question turns on the meaning of the words, in that section, “ from the part of his or her mother.” In this case the property came from Isaac J. Haring directly to the grandson, the daughter having died before the in- • testate. I contend, that the words mean, from the mother herself. But, whatever the ordinary may think, he cannot settle the question of title. It is a question, at least, of dispute of the construction put upon these words by the other side. It is a question tó be settled by a competent legal tribunal. The title must be first settled. The widow is legally in possession of the whole until dower is legally assigned. The Orphans’ Court cannot settle the title.

      W. Pennington

    for the Respondents., At Common Law there could be no question that the title is in the sisters. The statute does not vary the Common Law. The land came from the mother’s part; and is to go as if the father of this child, who was the person last seized, had died before the death of the child. The widow has no right but dower ; and Demarest has no right; he is in with the widow in possession. Now, unless the Court will let us set off dower, we can’t bring ejectment. The widow can hold until dower is assigned. Rev. Stat. 72, sec. 2. And Demarest would claim to hold under the widow. We cannot, then, raise the question of title until dower- be assigned. The assignment of dower does not turn the widow out. He should have to bring ejectment against any one in possession of the part not assigned for dower. The ease cited by Mr. Zabriskie from 2 Green’s Rep. 182 is right; but it has no application to our case. A man must be a tenant in common in possession, in order to obtain the appointment of Commissioners to make partition; and if he is not in possession, and his title is disputed, he must establish his title at law. In a case like ours, the applicants for Commissioners to assign dower are not in possession, for the reason, that the widow is, by law, in possession of the whole until dower is assigned. After the dower shall be assigned we shall have to bring ejectment for the residue, and the title can then be settled. Has Demarest any right"? Is not our claim better than his 1 It is really a question between Demarest and the sisters. The Ordinary will not take it that Demarest is in exclusive possession, but in possession with the widow. But I insist we are entitled to have dower set off, no matter who is in possession. The Ordinary will not settle the title. If we show a probable case the Court will allow us to go on. He submits, that the order of the Orphans’ Court should bo affirmed.
    Zabriskie, in reply.
    Demarest is in possession of all but one room, claiming as heir of the child. The sisters can bring ejectment against him. A person not in possession cannot assign dower. If dower should be assigned on this application the sisters would have to bring ejectment against Demarest. All we ask is, that they do that first. He submits, that the proceedings of the Orphan’s Court should be reversed.
   The Ordinary.

The 1st section of the u Act directing the descent of real estates” provides, that if any child of a person dying seized of lands and intestate shall have died before the intestate, leaving issue, the share of the land which the child so dying would have been entitled to if he or she had survived the intestate shall descend to and be inherited by such issue.

The 2d section of the said act provides, that when any person shall die seized of land, without will, and without leaving lawful issue, leaving a brother or sister, &c., the inheritance shall descend to the brother or sister, &c. The word c< issue,” in the phrase “ without leaving lawful issue,” in this section, includes the issue of a child who died before the intestate, otherwise a brother or sister would take before a, child of a deceased child, as. provided by the -first section, which-would.be contrary to the provision of the first section.

The. 3d section of the said act provides, that when any person shall die seized of land, intestate, and without leaving lawful issue, , and-without leaving a -brother or sister of the whole blood, or. any issue-of such brother or sister, and leaving a father, then the: inheritance shall go to the. father, unless the inheritance came, to the person so seized from-the. part of his or her mother, by descent,, devise or gift, in which case-it shall descend as if such person so seized .had survived his or her father.

..In the ease, before us, if -Ann Eliza, the daughter of the intestate, had survived him, and she had afterwards died without will,- and .the land had descended from -her to her infant son, and the son had afterwards died, Demarest, the father of ..this son, could not have • inherited. .The question is, does the fact that Ann Eliza died before the intestate put the inheritance in the son of Eliza in such way that Demarest can inherit-it'? It seems to me that every reason for excluding Demarest in the first case, exists in the. second case put. The estate, came from Haring, Ann Eliza’s father. Demarest has none of. the blood of Haring. By the right of representation the right of proximity is transferred from the root to. the branch,.and gives the branch the same preference that the root had-as next of blood. The last clause of the third section of our act is founded upon, and .adopts the- rule, that no one can succeed who is mot of .the blood pfi the first purchaser.

The Orphans’- Court have held, that the persons applying for the-appointment of Commissioners to .assign dower are persons interested in. the estate. It is asked that' I should reverse the order of- that Court, on the -ground, that Demarest claims to have succeeded to the inheritance as the heir of his said deceased son, and that the question, who is heir, is doubtful. But this Court is no more competent to deal with questions of title to land than the Orphans’ Court; and I am not willing to reverse the order of that Court on the suggestion of such a doubt.

The order of the Orphans’ Court will be affirmed. Order accordingly.


text:
    Administration Bond of Martin L. Green.
    The want of verification" of the facts stated in a petition for leave to prosecute an administration bond is not a ground on which the Ordinary, at the instance of the obligors in the bond, will vacate the order for prosecution.
    An order for the prosecution of an ^administration bond, founded on a petition stating that the administrator has not paid'to the persons entitled thereto the balance found in his hands,, will not[be vacated on the ground that no decree of distribution had been made by the Orphans* Court.
    The Ordinary’s not^requiring a bond of indemnity against costs, on granting an order to prosecute an administration bond, is not a reason for vacating the order.

      Semble : That the distributee’s not having tendered 'a refunding bond is not a reason ‘ for vacating an order for the prosecution of an administration bond.
    The petition of Samuel A. Allen, Administrator, &c., of Lewis Green, deceased, sheweth, that on the 5th of January, 1848, administration of the personal estate of Lewis W. Green was granted to Martin L. Green; who gave bond as Administrator, with WilliamSBasset and Caleb Lippincott as his sureties, in $2,000, for the faithful performance of his duties as Administrator.
    That the said Martin L. Green, as such Administrator, at the November term, 1849, of the Orphans’ Court of Salem, settled the estate of said Lewis W. Green ; and that on such final settlement a balance of $528.661-2 was found in his hands as Administrator; and that’ said final settlement was then allowed and decreed by the said Orphans’ Court.
    That Administration of thefpersonal estate of Lewis Green, deceased, was granted to the petitioner, on the 6th June, 1850.
    That said Lewis Green,’ deceased, in his life time, was the sole heir at law of the said Lewis W. Green, deceased.
    That the Said Martin L. Green, Administrator as aforesaid, did not within twelve calendar months from the date of his letters of Administration settle the estate of the said Lewis W. Green in the Orphans’ Court of Salem ; and did not pay over to the said Lewis Green, in his life time, the said balance of $528.661-2, or any part thereof; nor has he paid the said sum, or any part thereof, to the petitioner, Administrator as aforesaid, but wholly neglects and refuses to do so.
    The petitioner prays leave to prosecute the said Administration bond of Martin L. Green and his sureties, and an order on the Surrogate of Salem to give to the petitioner a certified copy of the said Administration bond, for prosecution ; the Surrogate first taking from the petitioner security that the Ordinary shall be saved harmless from all costs.
    This petition was signed “T. L. Smith, Proctor,” and filed June 22, 1850 ; and was not sworn to. On the same day an order was made by the Ordinary, reciting the allegations of the petition, and ordering that the said Samuel A. Allen, Administrator, &c., of Lewis Green, deceased, have leave to prosecute the said Administration bond; and that the Surrogate of Salem do give to the said Allen, Administrator as aforesaid, a certified copy of the said bond for prosecution; tho said Surrogate first faking from the said Allen security that the Ordinary shall be saved harmless from all cost's and fees in and about the said prosecution.
    On the 13th January, 1851, a notice, signed “ F. L. Macculloch, Proctor for Martin L. Green, William Basset and Caleb Lippincott,” addressed to Thomas L. Smith, Esq., Proctor of Samuel A. Allen, Esq., Administrator, &o., was given, that an application would be made to the Ordinary, on the 3d January, 1851, to vacate the said order, for the following reasons :
    1st, Because the petition for the said order is not verified by affidavit or proof.
    2d, Because the said petition does not specify and set forth matters sufficient to obtain such an order.
    3d, Because there was no proof that Martin L. Green ever was such Administrator as in said petition stated, or that he ever filed such an account as is therein set forth, or ever had any balance or surplus as therein specified.
    4th, Because it is not set forth or proved, how and in what right Lewis Green was tho sole heir of Lewis W. Green, deceased, and entitled to have said balance.

      5th, Because there is no evidence or proof that the said petitioner was Administrator, &c., of said Lewis Green.
    6th, Because there is' no proof that Martin L. Green did not within twelve calendar months from the date of his Administra-' tion settle the estate of the said Lewis W. Green in the Orphans’ Court of Salem, or how or in what manner the said petitioner was injured or aggrieved if the said estate was not settled within the said time.
    7th, Because it does not appear that the said Samuel A. Allen, as Administrator, &c., of the said Lewis Green, deceased, was legally entitled to receive the pretended balance of $528.661-2; or that any decree of distribution was made thereof by the Orphans’ Court of Salem; or that any refunding bond was ever executed therefor and presented to the said "Martin L. Green.
    8th, Because the said order was not made at the request of any party aggrieved by the forfeiture of' said Administration bond.
    9th, Becáuse no bond has been filed according to law toindéinnify and save harmless the Ordinary.
    10th, Because the petition, order and proceedings are in divers other respects uncertain, insufficient and erroneous.
    A motion to vacate the said order of the Ordinary was made, pursuant to the said notice.

      F. L. Macculloch,

    in support of the motion, cited 3 Green’s Rep, 92; Rev. Stat. 355; 1 Green’s Rep. 3; 3 Ib. 561; 1 Halst. Ch. Rep. 59.

      S. A. Allen contra.
   The Ordinary.

The condition of an Administration bond is, that the Administrator exhibit an Inventory in six calendar months from the date of the bond; and well and truly administer the personal estate according to law; and make a true account of his administration in twelve calendar months from the date of the bond; and deliver and pay all the residue of the personal estate which shall he found remaining upon the account of the administration, the said account being first allowed by the Orphans’ Court, to such person or-persons as shall by law be entitled to receive the same.

The act concerning executors, and the administration, and distribution of intestates’ estates,” provides, that, in case any Administration bond shall become forfeited, it shall be lawful for the Ordinary to cause the same to be prosecuted, at the request of any party grieved by such forfeiture; and that the monies recovered upon such bond shall be applied towards making good the damages sustained by the not performing the said condition, in such manner as the Judge of the Prerogative Court ■ shall by his sentence or decree direct. And that it shall be lawful for the Judges of the Orphans’ Court of the County, &c., after the administrator shall have legally accounted, to order an •equal distribution of what shall remain, after paying debts and expenses, among, &c., or to the next of kindred to the intestate in equal degree ; and the same distribution to decree and settle ; and the persons entitled to such distribution shall have their remedy at law, in case of non-payment, for the recovery of the same, against the Administrator so accounting : saving to every one supposing himself aggrieved his right of appeal.

The petition on which the order was made for the prosecution of the Administration bond of Martin L. Green as Administrator of Lewis W. Green states, that Lewis Green, since deceased, was the sole heir at law of the intestate, Lewis W. Green; and that the petitioner is the Administrator, &c., of the said Lewis Green. That the Administration bond of the said Martin L. Green is dated January 5, 1848. That said Martin L. Green • did not within twelve calendar months settle Ms administration accounts in the Orphans’ Court. That, in November, 1849, he settled Ms administration accounts ; and that thereupon a balance of $528,661-2 was found in his hands as such Administrator ; and that he did not pay the said balance, or any part thereof, to the said Lewis Green, in his life time, nor has he paid the same, or any part thereof, to the petitioner, the Administrator, &c., of the said Lewis Green; but wholly neglects and refuses to do so. Suit Las been instituted on tbe bond in tbe Salem Circuit; and at tbe November term, 1850, of that Court, tbe defendants were ordered to plead in ten days. A motion is now made to vacate tbe order made, on tbe said petition, for the prosecution of tbe said Administration bond of Martin L. Green, on' several grounds, above stated in the case. The motion is made in behalf of the Administrator and his sureties, the defendants in the suit at law. They do not deny any fact stated in the petition on which the order for prosecution was made.

All they say as to the facts stated in the petition is, that no proof was made of them to the Ordinary. The want of verification of the facts stated in the petition is not a ground for vacating, at the instance of the obligors in the bond, an order-to prosecute the bond. 1 Halst. Ch. 97. This disposes of the first six reasons, and part of the seventh. Another part of the seventh reason is, that it does not appear that any decree of distribution was made by the Orphans’ Court.-

I do1 not understand that the Ordinary, on a petition for an order for the prosecution of an Administration bond, is to adjudicate that the bond has been forfeited. This would involve the necessity of calling all proper parties before him, and of putting the petitioner through the regular stages of a suit. The law Court before. which the bond is to be prosecuted is the proper tribunal to decide whether the bond has been forfeited. I suppose’it was in this view that-the Court, in 1 Halst. Ch. Rep. 97, said, that no complaint could be niade against an order to prosecute on the ground that no forfeiture was made to appear.

If the bond has not been forfeited, the plaintiff in the suit at law on the bond will fail. It would not be proper for the Ordinary, on a petition to prosecute an Administrator’s bond for not paying a distributive share, to decide whether such a bond can or cannot be forfeited until the Orphans’ Court make a decree for distribution. The question, also, whether an Administration bond can be prosecuted at law by a distributee without the offer of a refunding bond, is a question for the law Court.

As to the 9th and last reason,' the Ordinary’s not requiring a bond of indemnity against costs, on granting the order to prosecute, is not a reason for vacating the order. 1 Halst. Ch. 97. Butin this case a bond of indemnity was given, according to the order in that behalf made by the Ordinary.

Motion denied.


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    Nicholas I. Doremus v. Ralph Doremus and others.
    J. conveyed to D., who had married his daughter, the equal undivided third part of a farm of 175 acres. J. died, and devised to his daughter, the wife of D., during her natural life, his undivided two third parts of the said farm, and after her death to her husband, the said D., and to his heirs. begotten of her body, to be equally divided between them. D.’s wife died; and, afterwards, D. died, seized of the said undivided third part of the said farm and other lands, leaving five children, and leaving a will, by which he devised to two of his sons, in equal shares, in fee, a lot of land of ten acres, describing it by metes and bounds, which ten acres was a part of the said undivided farm of 175 acres, and devised to his said five children all the residue of his estate, real and personal, in equal shares. The said ten acre? embraced the dwelling-house and other buildings belonging to the said farm. On bill for partition, the Court directed, that a division of the said farm be first made into two parts, one part to contain one-third, and the other, two-thirds, and that the one-third be assigned to the estate of D., in such way as to include the said ten acres; and that the portion so set off as two-thirds of the said farm be then divided into five shares, one share thereof to be assigned to each of the said five children; and that, of the part so set off as the one-third of the said farm, the ten acres so devised by D. to the two sons be assigned to the said sons; and that the residue of the said third part be divided among the five children of D.
    The facts sufficiently appear in the opinion delivered by the Court.

      Hopper and A. S. Pennington

    for the complainant.

      Barkalow

    for the defendants. He cited 3 Paige, 470, 4, 553.
   The Chancellor.

On the 9th of April, 1808, Roeliff Jacobus and his wife, for the consideration of $1,666, conveyed to Peter T. Doremus, who had married Susan, the daughter of the said Roeliff, the equal undivided third part of a farm of 175 acres.

Roeliff Jacobus died February 15th, 1809, leaving a will, by which he directed, that his widow Jane should remain in possession of all his estate, real and personal, during her natural life ; and then devised to this daughter Susan, wife of Peter T. Doremus, during her natural life, his undivided two third parts of the said farm, and after her death to her said husband, the said Peter T. Doremus, and to his heirs begotten of her body, to be equally divided between them ; but if his said daughter should survive her said husband, then to her and the children of said Peter begotten of her body.

Susan, the wife of Peter T. Doremus, died in 1840. Peter T. Doremus died October 5th, 1846, in possession of said farm, having made some improvement to the buildings, leaving five children, namely, Ralph Doremus, Cornelius P. Doremus, Thomas P. Doremus, Francis P. Doremus, and Nicholas I. Doremus, (the complainant,) and seized of the said undivided third part of the said farm, and of other lands held by him in severalty ; and leaving a will, by which he devised to two of his sons, namely, Thomas and Cornelius, in equal shares, and to their heirs and assigns. forever, subject to the payment of legacies amounting to $200, a lot of land of ten acres, describing it by metes and bounds, which ten acres was a part of the undivided farm of 175 acres; and devised to his said five sons all the resiidue of his estate, real and personal, to them, their heirs, &c., to be divided among them, share and share alike. The ten acres embraced the dwelling-house and other buildings belonging to the said farm. The bill is for partition.

The case presents a complicated and difficult question. It seems to be one of those cases for partition in which the Court is called upon to administer relief ££ ex equo et bono, according to its own notions of equity between the parties,” as is said in 1 Story’s Eq. Jur. sec. 656b ; where it is, also, further said, that equity will, by its decree, adjust all the equitable rights of the parties interested in the suit; and will, if necessary for this purpose, give- special instruction to the Commissioners.

It seems to me that a division should first be made into two parts; one part to contain two-thirds, and the other, one-third. If, in making that division, the Commissioners should assign to the estate of Doremus a third in such way as to include the ten acres, I should not think it wrong, but wise, in consideration of the improvements made by Doremus and the provisions of his will. I think, therefore, that the Court need not hesitate to instruct the Commissioners so to assign the third to the estate of Doremus.

The division being thus far made, the portion set off as two-thirds of the 175 acres will be divided into five parts, if it is susceptible of such division; if not the Commissioners will so report. The ten acres of the part so set off as the remaining third can then be set off from the residue of that third, and assigned to the two devisees thereof under Doremus’s will, and the said residue then be divided into five parts, if susceptible of such division ; if not the Commissioners will so report.

If the ten acres, including the buildings, be not more than a third in value of the whole 175 acres, the ten acres may as well be assigned to one as to the other of the parties; no complaint could be made by either of its being assigned to the other. It is a matter of indifference which party gets any particular portion of the land. There seems, therefore, to be no good reason why the Commissioners, or the Court, should not, in making partition, or directing the mode in which partition shall be made, have regard to ulterior interests of some of the parties, which interests might be defeated by one mode of division and protected by another.'

After much reflection it seems to me that the Commissioners should be instructed as above stated.

Order accordingly.


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    George W. King v. Jac. W. Miller, on bill for Injunction.
    An injunction to prevent the defendant from building so as to shut up a window in the gable end of complainant’s house, which the bill stated to be an ancient window,the complainant’s house being built on the line of his lot, ¶-as denied.
    The bill prayed an injunction to prevent the defendant from building so as to shut up a window, in the gable end of the complainant’s house, which he stated to ho an ancient window. The complainant’s house was built on the line of his lot. Denied,

      A. W. Cutter

    for the complainant.
   The Chancellor.

The owner of a lot has the election to build on it as he pleases. The owner of the adjoining lot has the same right. If the one who builds first chooses to build on the line, the adjoining owner has no means of preventing it; and has no means of preventing the continuance of the building on the line. Where one has a right to put up a building on the spot where he erects it, and to continue it there, and the adjoining owner can do nothing to prevent its erection on that spot, and can do nothing to prevent its remaining there, it is simply absurd to say, that the latter can by lapse of time lose his right to build up to his line. The loss of a right by lapse of time, from an act done and continued by another, can only he in cases where the party against whom the time is running has soma means of preventing the act or its continuance. Where he has no such means, he is no default, and can, therefore, lose no right. And a person by doing and continuing an act on his property which he has a right to do, and which another has no means of preventing, can acquire no right injurious to the property of that other.

Motion denied.


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    Van Walkenbergh & Osborn v. The Rahway Bank.
    An injunction restraining an ejectment was dissolved; and the order of dissolution was appealed from, and affirmed; the dissolution and affirmance being, both, with costs. A motion that furthtr proceedings on the bill be stayed until the said costs, be paid was denied.
    On bill filed, the complainants had obtained an injunction restraining the defendants from further prosecuting an ejectment. On answer and motion,, the injunction was dissolved. The order of dissolution was appealed from, and was affirmed. The dissolution and the affirmance were with costs.
    A motion was made, on the part of the defendants, on proof of demand of the costs, and service of the taxed bill of costs, that further proceedings on the complainants’ bill be stayed until the costs be paid.

      F. B. Chetwood for the motion.

      W. Pennington contra.
   The Chancellor

denied the motion.


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    James Johnson, Sen., v. Henry Johnson and John N. Olcott.
    The position — that a mortgagee may release a part of the premises mortgaged to him, and throw the whole burden upon the remaining part, notwithstanding the remaining part has been subsequently mortgaged to another whose mortgage has been recorded, if the first mortgagee had not actual notice of the second mortgage— cannot be maintained.
    On the 8th September, 1846, Henry Johnson gaye a mortgage to John Kipp on thirteen lots of land, payable in one year. On the 3d February, 1849, this mortgage was assigned to James Johnson, Sen., the complainant.
    On the 19th May, 1847, Henry Johnson gave a mortgage to A. V. Stout on lots 1 and 2 of the said thirteen lots, which was afterwards assigned to John N. Olcott; and, on the 29th May, 1847, Henry Johnson gave another mortgage on the said lots 1 and 2 to the said Olcott. In July, 1848, Olcott filed a bill against Henry Johnson alone, on his two mortgages; and, in December, 1848, obtained a decree for the sale of the said lots 1 and 2; and, on the 26th March, 1849, the said lots were sold under the said decree, and were purchased by Olcott. On the 3d March, 1849, James Johnson, Sen., for the consideration expressed of $1, released to Henry Johnson, who was his son, nine of the thirteen lots covered by his mortgage, leaving lots 1, 2,11 and 12 not released. In June, 1849, James Johnson, Sen., exhibited the bill in this case, against Henry Johnson and John N. Olcott, for the foreclosure, &c., and for the sale of the said lots 1, 2,11 and 12 not released. Olcott’s mortgages were duly recovered, prior to the said release.

      Barkalow for the complainant.

      Vandervoort for the defendants.
    He cited Saxton’s Ch. 421; 1 Halst. Ch. 186; 1 Story’s Eq. Jur. sec. 349.
   The Chancellor

The position contended for by the complainant’s counsel — that a mortgagee may release a part of the premises mortgaged to him, and throw the whole burden upon the remaining part, notwithstanding the remaining part has been subsequently mortgaged to another whose mortgage has been recorded, if the first mortgagee had not actual notice of the second mortgage — cannot be maintained.

In this case, the release was not made until after Olcott had obtained a decree on his mortgages, and after the two lots covered by them were advertised for sale, and after the complainant in this case had notice of that advertisement. A reference will be ordered to ascertain the value of the lots released. The value of the lots 11 and 12 may also be ascertained. Lots 1 and 2 cannot be reached by the complainants, unless lots 11 and 12 be insufficient to pay what may be found to be properly charged on the lots not released.

Order accordingly.


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    Elizabeth B. Martin v. Wm. Martin, Jun’r.
    On a bill by a wife against her husband for a separate maintenance, alleging an abandonment of her by her husband, an answer was put in, and testimony taken; and a motion was then made, on the part of the complainant, for alimony pendente life. It appeared in the case, that the complainant was living with her father, away from the defendant’s house, having two of the children with her; and each party claimed that the abandonment was by the other. The Chancellor said, that if the complainant would go, with the children she had with her, to the defendant’s residence, and he should refuse to receive her as his wife and provide for her and the children, the Court would, on being properly informed of such refusal, allow alimony pendente life ; but denied the motion as the ease then stood.
    The bill, filed March 3, 1851, states the marriage between the complainant, (whose maiden name was E. B. Cumming,) and the defendant, on the 23d November, 1843. That they commenced housekeeping, at Beatty’s Town, Warren County, in May, 1844, and resided there until September, 1848, when they moved to Ilackottstown, in the same County. That the complainant has four children by her said husband, the oldest of which was 6 years old in September, 1850 ; and the youngest of whom is about 4 months old. That she and her husband lived together very well until about four years ago ; at which time she whipped the eldest child, then about two years old, moderately, for some misbehavior, in her husband’s presence, on a Saturday. That her husband made no objection to the correction then; but on Monday he went to his mother’s, who lived in the vicinity, and returned; and again, Monday evening, went to his mother’s and returned in the night, after the complainant had retired to bed, about 11 o’clock at night, and got into bed, and then asked complainant why she whipped that child, and said she had whipped the child unmercifully, and ordered the complainant to get out of bed and go home ; and said that if she did not get out of bed he would kick her out; and said he would call up the hired man, Hankinson, and send her home. And he tried to push the complainant out of the bed; but, as she was tangled up in the bed clothes, he did not succeed. And he then left her bed, and went into another room and slept by himself.
    That after they moved to Hackettstown, about August, 1849, the defendant became deranged, and for about the space of a week deprived of his reason: he then recovered his mind. That during his derangement he had a great antipathy to the complainant, and accused her of infidelity to him; and has ever since occasionally charged her with infidelity to him; and still seems to harbour an enmity towards her. v That, about May, 1850, she was engaged in having her house cleaned, when the defendant wanted her to help carry out the parlor stove. That she was then in a delicate situation, and was unable, from bodily infirmity, to do so, and so informed him, when he flew into a violent passion and pitched the stove over and rolled and tossed it over the carpet and out of the room, breaking off the door of the same and some of the feet *, and he went off and got his dinner away from home, and did not return home until late in the afternoon. That from that time on he absented himself from home a good deal, without giving any notice where he was going, or without any apparent business, and was very distant and unfriendly towards her; sometimes professing his friendship in a very unnatural and constrained manner ; and during the summer and fall, on several occasions, requested complainant, after night;, to go with him down to the bank of a small pond not far away, under pretence of seeing the water; but hi* conduct towards her was such as to excite her suspicions of his intentions being correct; and she declined at any time to go with him there.
    That, about the last of November, or first of December, 1850, he went off one afternoon across the fields, without mentioning to her, or any other person as she thinks, where he was going, and was gone until late at night, and about 11 o’clock he returned and built up a large fir* in the stove in the room adjoining that in which she slept; and she observed that the candle which was near the stove was melting from the heat, and asked him if he had not better move it back, when he answered that it was none of her business; and he sat up by the stove without going to bed the most of the night, and the complainant dared not go to sleep while he was there.
    That he continued to maltreat her, and frequently ordered her to go home, and conducted towards her in such a manner as to put her in fear of her life and personal safety. That on a Sunday afternoon, the last of December, when she was preparing to go to meeting, ho requested her to go out of the kitchen, where the other members of the family were, into the parlor with him. That she went, not knowing what he wanted of her, and he closed the door after them as they went in, aud then turned to her and took her hands in one of his and held on very tightly, while he put his other hand into or in the direction of his pocket, and seemed much excited. That she efforted to got away, and he said why should we be afraid; but she got loose from him, and got out of the parlor. That he made no communication, nor introduced any subject of conversation, nor seemed to have any call for the complainant in the parlor, nor gave any pretence of any.
    That she was afraid of her said husband ; and Samuel Gulick, his clerk, came to sleep at night with him, to which he assented, and had a bed prepared for them to sleep together in another room from complainant, and complainant took the servant girl to sleep in her room. That she had a bolt to her room on the inside, and had it fastened. That on the same Sunday night, about midnight, the defendant came to her room door and tried to get in, but found it fastened, and then requested her to let him in, under various pretences of wanting certain articles which were not in there, and which she informed him where he could find; and then upon the further pretext that he wanted to see the children ; but that complainant was afraid to let him in unless Gulick would come with him: and ho left and returned to his own room.
    That on Thursday of the same week, the 2d January, 1851, he told her she should go home ; and he spoke to Robert Stelle, Esq., to take her home. That Stelle was going that day to take dinner with complainant’s brother-in-law, John C. Potter, on the road towards her father’s; and, as her husband said he would go along, she concluded to go and see if she could not get her husband reconciled to her; and they went to said Potter’s, and all took dinner together ; and, instead of going on to her father’s, returned home; and that night he told her she should not lodge in-the house, and compelled her to go out and get lodging, with her babe, at one of the neighbors. That she returned in the morning and prepared breakfast, and she and her husband breakfasted .together; and after breakfast he told her she must go home that day. That they had killed hogs a few days before and she was about to engage, that day, in the necessary preparation for attending to the same, and so informed him that she wanted to attend to it that day, and tried to defer him ; but he said she must go, and sent a line to said Stelle to come and take her.- Defendant went out to his store, and came back and said to her that she must go, and that Stelle would take her. That Stelle came, and said he would take complainant if she must go, and defendant said he would go along; at which Stelfe said he would not go if defendant went, that he could take her himself and complainant tried to persuade defendant to let her remain and attend to fixing the meat; but he said she must go that day, and that if she did not go and get out of his way he did not know what he might do to her; that he did not want to hurt her, but that if she did not go he did not know what he might be tempted to do, he did not know but that he might throw himself into chains before night. And he then got up his horse and sleigh, and his clerk, Gulick, went with him ; and they took the complainant, with the second and the youngeát child, up to the complainant’s father’s, the third child being there at that time. That they drove' the complainant to her father’s, and set her and the said children out upon the side of the road in front of her father’s house; and neither of them went in, or stopped to hold any conversation upon the business of their coming over,, or otherwise, and drove back. That the oldest child, which was left at defendant’s, was taken sick the next week with the whooping cough, and needed complainant’s attention, and she went and got it and took it also to her father’s, where she and her four children have since been living upon his' hospitality. That her husband made no visit to her, or any communication to her, after he took her to her father’s, until about the 7th of February thereafter, when he, with his said clerk, drove up, and stopped in the road opposite her father’s, on their way, as she understood at the time from the said clerk, to Cummingstown, on some business ; and the said clerk came into the house, the defendant remaining in the wagon, which had but one horse before it. That said clerk inquired of complainant if she was ready to go home, and said that William, her husband, wanted her to come homo. That she informed him the children were too unwell to go out then, and that she was not then ready; not expecting them; but that she was coming down to see about some affairs that week, or very soon, and they could make arrangements. That the said clerk then said, take notice that William, meaning the defendant, did not calculate, then, to pay for any board of complainant and the children, and went out, and they drove off. That complainant’s father asked said clerk why the defendant did not come in, and he said he had not time. That at this time the defendant had advertised an auction to sell off Ms store goods, and perhaps his household goods, and had advertised his house and store-house, in Hackettstown, for rent; and afterwards, on the 18th, 19th and 20th of February last, (1851,) held an auction of his personal property, and, as complainant has been informed, disposed of most of his personal property, including his only cow; and seems preparing to discontinue housekeeping.
    That, after she was married and commenced housekeeping, she was provided by her father with an outset of personal property, amounting to $280 in value, which went into defendant’s possession. That by the will of her grandfather, Job Johnson, a legacy was bequeathed to her, which her husband, about 1846 or 1847, received, amounting to $306. That by the same will there was devised to her the one-fourteenth of a certain. farm, from which her husband received a rent of $41 a year for four years, and afterwards the said farm was sold by Commissioners, and the portion coming to her therefrom, amounting to $850, was paid to her said husband, about the spring of 1848.

      The bill then states the pecuniary circumstances of the defendant.
    That her father, being unable from bodily infirmity to go about to attend to business, sent for his brother-in-law, Azariah Davis, Esq., to come and attend to the matter on the part of the complainant; and that said Davis, at the request of the complainant and her father, went to Hackettstown, in company with complainant’s brother, J. J. Cumming, to see the defendant, to see if he would make any provision for her, or any arrangement to let her come back and live at his house again, in a peaceable manner. And the complainant has been informed, and believes, that said Davis and her said brother went to see the defendant; that they found him at his house, in Hackettstown, in company with some of his brothers and friends. That, immediately on the defendant’s seeing her said brother in the house, he #rdered him out of the house, without any ceremony ■or conversation, and appeared very much enraged against him, without any previous difficulty between them; and that when the said Davis introduced the subject of the difficulty with the •complainant, and expressed a desire to have some peaceable and amicable settlement, he' said to Davis, that if that was his business he should leave the house, and refused to entertain any conversation on the subject. That she has been informed and believes, that said Davis endeavored to get some arrangement of the matter through the brothers and friends of the defendant; but could get no satisfaction, or any interference by them in the matter; and was given to understand, that if complainant attempted to force any settlement or provision for her, that her said husband must be or would be prepared to meet it. That, from the course pursued by her husband, she really believes, that, unless prevented by the injunction or order of this Court, he will convey or incumber his real estate so as to prevent her obtaining any provision therefrom or from him.
    That her said husband has, without any justifiable cause, abandoned her and separated himself from her, and hath refused and neglected, and still refuses and neglects to maintain and provide for her or for her children.

      The bill prays, that the defendant may be decreed to pay and provide such suitable support and maintenance for the complainant, and her said children, and for such time, as to the Court shall seem just.
    An answer was put in, and testimony was taken. And a motion was now made, on the part of the complainant, for alimony pendente lite,

      P. D. Vroom in support of the motion.

      S. G. Potts contra.
    He cited 1 Halst. Ch. Rep. 471; 2 Barb. Ch. Rep. 147; 8 Ib. 206; 11 Paige, 46.
   The Chancellor.

The bill is for a separate support and maintenance for the wife and children. The present motion, is for alimony pendente lite.

I have had occasion before to say, that it is not a matter of ■course to allow alimony pendente lite ; that the circumstances of the case will be looked into, and a discretion exercised by the Ceurt.

The opinion and action of the Court in the case cited from 1 Halst. Ch. Rep. 471 is correctly shown in the synopsis of it. The language given as the opinion of the Court is incorrect.-

In this case, the bill contains a general allegation that the defendant has abandoned the complainant; but the facts stated in the bill fall short of showing an abandonment; and the answer and the facts stated therein and in the testimony deny it. And no sufficient cause is shown by the bill or the testimony for an -abandonment of her husband by the complainant.

I think the case, so far as regards this motion, may be put on very safe ground. The question seems to be, on whose part is the abandonment. If she is sincere in supposing that the defendant has abandoned her, we must suppose that she is willing to return to him.

If she will go, with the children she has with her, to the defendant’s residence, and he shall refuse to receive her as his wife and provide for her and the children, the Court will, on being properly informed of such refusal, allow alimony pendente lite. But, under the present aspect of the case, the motion is denied.

Motion denied.