author: Black, J.

text:
    Mary M. Aikins, administratrix, &c., complainant-appellant, v. T. Percy Baker, defendant-respondent.
    [Submitted February term, 1926.
    Decided May 17th, 1926.]
    1. The depositions of the complainant were taken de bene esse after the commencement of the action, subsequently he died and his administratrix was substituted as complainant. At the hearing of the case the depositions were offered in evidence and exlcluded, in so far as they covered transactions with or statements by the defendant. E'eld, not error.
    2. The act (P. L. 1918 p. 105) is not applicable. “If any other party to such suit, &c., shall thereafter die;” that statute does not designate the complainant as “such other party” who shall “thereafter die.” The case of Beehhaas v. Ladner, 48 N. J. Eq. 152; affirmed, 50 Ibid. 487, is controlling.
    On appeal from a decree of the court of chancery.

      Mr. Charles A. Rigg and Messrs. Palmer & Powell, for the appellant.

      Mr. Robert Peacock and Mr. Lewis Starr, for the respondent.
   The opinion of the court was delivered by

Black, J.

The learned vice-chancellor, who heard this case and advised a decree dismissing the bill of complaint, excluded, when offered in evidence, the depositions of J. Russell Aikins, the deceased complainant, taken de bene esse before the trial, in so far as they covered transactions with or statements by the defendant. The complainant, J. Russell Aikins, died between the time of taking the depositions and'the hearing by the vice-chancellor. Mary M. Aikins, administratrix of J. Russell Aikins, was substituted as the party complainant! These depositions were vital to the complainant’s cause. The only problem for solution, therefore, in the case, is, was this ruling of the vice-chancellor error? We think it was not and for two reasons — first, because the case as made is not within the scope or terms of the statute. P. L. 19IS p. 105. That statute reads as follows:

1. “In any civil suit, action or proceeding in any court, any party thereto, at any time after commencement thereof may, at his option, be examined! as a witness de bene esse on oath or affirmation. If any other party to such suit, action or proceeding shall thereafter die, and if such suit, action or proceeding shall toe continued after the death of such other party, the examination so taken may be read in evidence, notwithstanding it shall relate to transactions with or statements toy such decedent.”

From a reading of this statute it must be quite clear that it does not apply to the situation here under investigation in this ease.

“If any other party to such suit, action, &c., shall thereafter die,” does not designate the complainant, who died and whose testimony was taken de bene esse, he is not “such other party” called for in the statute, who shall “thereafter die.” Hence, we conclude, that this statute is not applicable. The second reason for sustaining the ruling of the vice-chancellor is found in the opinion of Vice-Chancellor Pitney in the case of Beckhaus v. Ladner, 48 N. J. Eq. 152, affirmed by this court, 50 Ibid. 187, for the reasons given in the court of chancery. That case is directly in point and it is controlling. In that case the complainant was sworn and examined as a witness in his own behalf and then died before the defendant was sworn, but after she had time and opportunity to be sworn. The action was revived by the complainant’s executors, and then the defendant was sworn in her own behalf and gave evidence before the master, subject to objection, of transactions with and statements made by the decedent. It was held such evidence was incompetent. As stated, that ruling was 'affirmed by this court.

The vice-chancellor reviews at some length, with his accustomed thoroughness, the statutes and decisions of our courts on this troublesome question down to the date of that decision in 1891. The act then under investigation and in force was the act of 1859. Rev. p. 378 § 3, as modified by the act of 1880. The acts now in force are the Revision act, P. L. 1900 p. 362; 2 Comp. Stats, of N. J. p. 2218 § 4; P. L. 1913 p. 105, above cited. There is a long list of cases in our reports, in which questions arising out of the application of these statutes have been discussed and decided. But none of them deal with the precise point involved in this ease, except as above stated.

For these reason the decree of the court of chancery, dismissing the bill of complaint, is affirmed.

For affirmance — The Chiee-Justice, Tbehchaed, Paekeb, Mihtuen, Kalisch, Black, Katzenbach, Campbell, White, Gabdhee, Yan Buskiek, McGlehhon, Kays, Heteield, JJ. 14.

Fur reversal — None.


source: Caselaw Access Project

author: Katzenbach, J.

license: Public Domain

text:
    Anna L. Harvey, complainant-appellant, v. John D. Randall and Maeze Bianchi, defendants-respondents.
    [Submitted February 11th, 1926.
    Decided May 17th, 1926.]
    1. The finding by the court of chancery that an agreement for the sale of lands bad not been properly recorded, and that a Us pendens filed in the county clerk's office on same day, hour and minute as a deed of the property covered by the Us pendens is not notice to the filer of the deed of the contents of the Us pendens, does not justify the making of an order by the court of chancery declaring the Us pendens null, void and of no effect, and directing the same to be discharged of record. ■
    2. One claiming to be a vendee of property under an alleged agreement of sale, who has filed a bill for specific performance, has the right to traverse the tona fides of a deed made by the alleged, vendor, and pending a hearing to have a Us pendens remain of record as a protection against alienation of the subject-matter of the suit.
    3. A Us pendens can only be discharged of record by the methods provided in the statute entitled “An act respecting notice of Us pen-dens. P. L. 1902 p. 1,11; 1 Gomp. Btat. p. 3115.

    On appeal from an order of the court of chancery advised by Vice-Chancellor Church, whose opinion -is reported in 98 N. J. Eq. 104.

      Mr. Ward Kremer, for the complainant-appellant.

      Messrs. .Donohue & O’Brien (Mr. ■ Ovidio 0. Bianchi, of counsel), for the defendants-respomdents.
   The opinion of the court was delivered by

Katzenbach, J.

This is an appeal from an order of the court of chancery declaring a Us pendens, filed in the Monmouth county clerk’s office, in a vendee’s suit for specific performance of a contract for the sale of lands, null, void and of no effect, and directing the same to be discharged of record.

. On April 20th, 1925, John D. Randall, owner of a property \m the city of Asbury Park, in this state, known as No. 204 .Seventh avenue, signed a paper, in the form of an acknowledgment of the receipt of checks aggregating $500 from Anna Jj. Harvey, which, if accepted by Randall, would entitle Mrs. Harvey to purchase the ■ property for '$10,000. The checks were to apply, if used, on the purchase price. The balance of the consideration was to be paid in cash on delivery of .the deed. >On May 1st, 1925, Mr. Randall wrote to Mrs. Harvey that he could not sell'the property "and returned the checks. On May 9th, 1925, the alleged agreement of sale was recorded in the Monmonth county clerk’s office in book U of ¡miscellaneous records. On May 27th, 1925, the clerk of Monmouth county received, at eight a. m:., by mail, a deed made by Bandall to Maeze W. Bianchi, dated May 8th, 1925, and entered the same of record as having been received for record at the time mentioned. In the same mail the clerk received a Us pendens affecting the property in question which was filed simultaneously with the deed. On the previous day, May 26th, 1925, Mrs. Harvey, assuming the writing referred to to be a contract for the sale to her by Bandall of the property mentioned, filed a bill in the court of chancery against Bandall, asking for the specific performance of the alleged agreement. A subpoena to answer was on the same day issued. The subpoena was served on May 27th, 1925. Thereupon, Mrs. Bianchi filed a. verified petition m the court of chancery setting forth that on May 8th, 1925, she had bought for a valuable consideration the said premises from Bandall; that she had received a deed therefor; that the deed and- Us pendens referred to had been received and filed at the same time by the clerk of Monmouth county; that she was a bona fide purchaser of the property, and that she was desirous of mortgaging the property, but could not do so because, of the filing of the Us pendens. The petition concluded with a prayer that she be admitted as a party defendant to the bill of complaint, and that the Us pendens be discharged of record. Notice of a motion based on this petition was given to the complainant. The motion was made. The learned vice-chancellor who heard the motion filed an opinion in which he held that the alleged agreement of sale recorded as above stated was not notice to Mrs. Bianchi because section 21 of the act respecting conveyances, as amended (P. L. 1917 p. 296), includes in the list of documents to be recorded “agreements for sale,” and the act respecting conveyances further provides that “agreements for sale” shall be recorded under “deeds.” The vice-chancellor further held that a Us pendens filed on the very same day, hour and minute that a deed was filed could not be notice to the filer of the deed of the contents of the lis pendens. Ror those reasons the order discharging the lis pendens was advised.

The views express by the learned vice-chancellor upon both these matters, assuming them to be correct, did not justify the making of the order appealed from. The opinion filed begged the important question involved, namely, whether Mrs. Bianchi was a bona fide purchaser for value of the property. Assuming the writing which the complainant held to be an enforceable contract, the complainant had the right to traverse the bona, fides of the deed of Randall to Mrs. Bianchi, and pending a hearing, to have the Us pendens remain of i-ecord, as a protection against alienation of the subject-matter of the suit because a decree in a specific performance suit will bind alienees as well as parties to the suit. Feld v. Kantrowitz et al., 99 N. J. Eq. 706. The order appealed from prejudged the question as to whether or not Mrs. Bianchi was a bona fide purchaser of the property in question without notice of the complainant’s rights. The order, in effect, held that she was a bona fide purchaser without notice. The discharge of the Us pendens made it possible for Mrs. Bianchi to mortgage the property which she frankly stated she desired to do. The discharge also made it possible for her to alienate it, so that if, upon a final hearing, the evidence warranted a decree, that the writing which the complainant held "was a valid contract, and that Mrs. Bianchi had taken title to the property with notice of the complainant’s rights, and that the complainant was entitled to specific performance of the contract, the complainant would be remediless because of the discharge of the Us pendens, if the title to the property had been acquired from Mrs. Bianchi by one who was a bona fide purchaser without notice of the rights of the complainant. The prevention of such a situation was the purpose of the enactment of the statute providing for the filing of a Us pendens.

There is also a further reason why the order appealed from should be reversed. The legislature has seen fit, in the exercise of the powers bestowed upon it, to provide by statute P. L. 1902 p. 477; 3 Comp. Stat. p. 3175) for the filing of a lis pendens, tlie contents of the document, the manner of recording and the procedure in discharging the same of record. Three methods of discharge are provided for in the statute. Section 4 of the act provides that whenever a final decree shall be made in favor of the defendant in a cause in which a lis pendens has been filed, the clerk shall enter upon the margin of the record a statement of the substance of the decree, which has the effect of discharging the lands. Section 5 of the act provides that the chancellor or a supreme court justice may order a lis pendens discharged of record upon the giving of proper security by the defendant, in cases in which the enforcement of a claim for the payment of .moneys upon the lands involved is sought, for the payment of such sum as may bv^ the final determination of the cause be ascertained to be chargeable upon the lands. Section 7 provides the method to be followed of discharging the lands upon payment of a decree or upon settlement of the suit.

There is no statutory provision for the discharge of a lis pendens of record in the manner and for the reasons assigned by the learned vice-chancellor in the present case. The court of chancery, therefore, had no power to make the order which it did. It could not discharge the lis pendens of record except as provided in the statute.

Eor the reasons given the order under review is reversed and set aside.

For affirmance — ISTone.

For reversed — The Ciiiee-Justioe, Trenci-iard, Parker, Minturn, Kalis ch, Black, Katzenbacii, Campbell, White, Gardner, Yan Bxjskirk, McGlennon, Kays, Heteield, JJ. 14.


author: Campbell, J.

text:
    Newark Trunk Company of Newark, New Jersey, a corporation, complainant-appellant, v. Ada R. Clark et al., defendants-respondents.
    [Arguecl October 30th, 1925.
    Decided March 26th, 1926.]
    1. The pleadings in this cause do not contend for, nor do the proofs make for, the establishment of an easement by parol, and, therefore, Lawrence v. Springer, J¡9 W. J. Mg. 289, has no application.
    2. The proofs in this cause, as returned- upon this appeal, do not establish an easement by express agreement.
    3. Mutual mistake can, and in most instances must, be established by parol evidence, and it was error to exclude such evidence.
    On appeal from a decree of the court of chancery.

      Mr. Harry Levin, for the appellant.

      Mr. Samuel E. Ayers and Messrs-. Egner & Beatty, for the respondents.
   The opinion of the court was delivered by

Campbell, J.

Appellant, having contracted to purchase a tract of land in the city of Newark, upon which there were several buildings which had been previously used and occupied by one occupant, contracted to sell to respondents a portion of the said lands, containing some of the buildings, before it had itself taken title under its contract of purchase.

The closing of the transaction under both contracts was consummated at the same time.

The buildings upon the lands conveyed to respondents having been previously used in connection with the buildings upon the lands to which appellant took title, the sewage, heating, water and fire alarm systems were in single units serving all the buildings.

The contract between the parties, and likewise the deed by which title passed, provided that a one-half interest in the fire alarm system should pass to the respondents; that as the water intake was on the property of the respondents the appellant should retain an easement upon respondents’ premises “for the free and uninterrupted running through and supplying of water and apparatus therefor” for the use of appellant’s premises; such water as used to be paid for by appellant and such easement to continue for five years; that if appellant so desired, and for such period as it desired, the respondents would furnish heat to appellant’s premises upon the payment of $350 per year.

The sewer into which the drains, &e., of appellant’s premises connected, ran through the premises of respondents to the street, there emptying into the public sewer.

Leaders from the roof of the building upon respondents’ land emptied upon the premises of appellant, and the water discharged therefrom ran to and found its way through the house drains upon appellant’s lands, which drains in turn emptied into the sewer or building drains on respondents’1 land.

Subsequent to the conveyance of the lands to the respondents they cut off and disconnected appellant’s premises from the drains and sewage system upon respondents’ premises, and thereupon appellant filed its bill of complaint praying that respondents be perpetually enjoined from disconnecting the sewer from its premises and from filling up or obstructing it, or doing any act which would deprive appellant of the full enjoyment thereof or from failing to maintain the same for the full enjoyment of the premises of the appellant.

The said bill further prayed that the contract of sale and the deed to respondents be reformed by making the same comply with the true intention and meaning of the parties, it being contended by appellant that failure to mention or provide for the easement or right of sewage in the contract of sale and deed was the result of a mutual mistake.

Upon a hearing upon bill and answer, a final decree was advised and entered dismissing the hill of complaint.

The complainant below appeals from such decree and urges and argues four grounds:

First. That the court below erred in holding that the easement contended for was an easement by parol.

In the conclusion filed by the vice-chancellor he bases his conclusion upon Lawrence v. Springer, 49 N. J. Eq. 289, in which this court holds that an easement cannot be imposed upon land by force of parol evidence. Such was not the purpose of the bill of complaint in this cause. The conclusion of the vice-chancellor was therefore based upon an erroneous interpretation of the cause of action before him.

Second. The easement sought is an express one. Under this appellant seeks to have interpreted the provision in the contract of sale and in the deed so as to include and cover an easement of sewage.

But we think such effect cannot be given to the language employed.

Third. The court below erred in rejecting evidence tending to show mutual mistake.

The proceedings in the court below, as they are before us, conclusively show that all the testimony in this direction was excluded.

In this respect error clearly exists.

Fourth. A further ground for reversal argued is that the easement of sewage over respondents’ lands is one that arises and exists in law by implied reservation.

But this was not raised and urged in the court below so far as the proceedings upon final hearing now before us show, and, therefore, we have not considered it.

For the trial error, before indicated, the decree below is reversed and the cause remanded to the court of chancery for rehearing.

For affirmance — None.

For reversal — The Chiee-Justice, Teekchaed, Paekee, Miktubk, Kalis oh, Black, Katzekbach, Campbell, Gaedkee, Yak Buskiek, McGlekkok, Kays, Heteield, JJ. 13.


author: White, J.

text:
    Mary Babirecki, by Stephen Babirecki, her next friend, and Stephen Babirecki, individually, complainants-appellants, v. Andrew G. Virgil, Frances Virgil, Louis J. Virgil and Mamie Virgil, defendants-respondents.
    [Decided May 17th, 1926.]
    Evidence examined, and held, that the defendants have not sustained the burden which the law cases upon them under the facts established by that evidence to sustain the contention that the deed in question was supported by a valid consideration.
    On appeal from a decree of the court of chancery advised by Yice-Chaneellor Church, whose opinion is reported in 98 N. J. Fq. 118.

      Mr. Jolm V. Laddey, for the appellants.

      Mr. Frank B. Bozza (Mr. John W. McGeehan, Jr., of counsel) and Mr. William H. Smith, for the respondents.
   The opinion of the court was delivered by

White, J.

The important facts seem to us to be as follows:

Andrew and Louis Yirgil were brothers, and bought, collected and sold junk. Louis had judgment creditors, and his wife, Frances, was, therefore, made a partner with Andrew, instead of Louis, who, however, with Andrew, carried on the work of the firm. Two adjoining lots of ground in South Orange were purchased (originally on installments) and title to one lot taken in the name of Frances (Louis’ wife) and the title to the other lot in the name of Mamie, who was Andrew’s wife. Subsequently, the “outfit” built quite an expensive house and place of business (with the firm name “A. Yirgil & Co.” carved on it) on the lot to which Mamie held title. Naturally, this threw the adjustment out of equilibrium, whereupon both lots were conveyed to an intermediary (a clerk in the office of Howe & Davis, counselors of high standing in this state), and the intermediary on the day following conveyed both properties to Frances, wife of Louis, and Mamie, wife of Andrew, in equal shares as tenants in common. This was in 1917. Subsequently, Louis’ judgment debts seemingly having disappeared, he also became a member of the firm, so that in 1921 the partners were Andrew, Frances and Louis, and the title to the real estate was vested in equal shares in the two wives, Frances, who was a member of the firm, and Mamie, who was not.

On January 28th, 1921, the firm negligently injured a child, Mary Babireeki (one of complainants), three and a half years of age, who, with her father, instituted suit for damages in the circuit court against the three partners, Andrew, Frances and Louis. This suit was commenced April 2d, 1921, and, thereupon, on May 6th, 1921, Frances and her husband, for the expressed nominal consideration of one dollar, conveyed her undivided half interest in the real estate to Mamie, and on the same day the members of the firm executed a chattel mortgage to one Rose Cursi for all the personal property of the firm, consisting of auto trucks, &c., under which chattel mortgage the partners’ ownership in the chattels was closed out by foreclosure on March 29th, 1922.

On February 10th, 1922, trial of the damage suits resulted in verdicts in favor of these complainants, and on March 10th, 1922, judgments thereon aggregating something over $4,500 were entered against the three partners, and an execution, issued April 5th, 1933, naturally proving fruitless, this bill to set aside as fraudulent the deed of May 6th, 1931, from the partner-wife, Erances, who was liable for the prior accident, to the non-partner-wife, Mamie, who was not, was filed.

Under these circumstances, this court held, in an opinion by Mr. Justice Katzenbach (97 N. J. Eq. 315), reversing a decree of dismissal entered on a previous trial of this case— (1) that the statute to protect creditors against conveyances made to defraud them, extends its protection to those who at the time of such conveyances have valid rights of action •for damages for torts, which rights are subsequently reduced to judgment before attack is made upon the fraudulent conveyances, and (3) that the burden of proving, when attacked as fraudulent, the consideration of a deed where no consideration was paid at the time of the conveyance, is upon the grantee.

At the present trial the respondents attempted to bear the burden thus defined, by setting up an alleged previous contract in writing between Erances and Mamie, said to have been entered into (August 16th, 1917) nine days before the 1917 conveyances to them as tenants in common above mentioned, whereby it is said to have been agreed that the title to both properties should be conveyed to Frances and Mamie in equal shares, but that Erances was indebted to Mamie in the sum of $3,500, and should pay her six per cent, interest thereon annually, and the principal within three years, and that, upon default in so doing, she, Frances, should deed the undivided half interest so to be conveyed to her to Mamie, in full extinguishment of any interest of Frances in the property. It is further alleged that Erances never paid any interest in hceordance with this agreement, nor did she pay the principal, and that the conveyance of 1931, now attacked, was, in reality, a performance by Erances of this contract on her part. This contention is substantiated by the testimony of Louis, Erances, Andrew and Mamie and of Mamie’s sister, whose name appears as a subscribing witness to the alleged contract.

The learned vice-chancellor thought the testimony of these five witnesses to be controlling and dismissed the bill. We think, in so doing, he failed to give full consideration, on the one.hand, to the unreliability, resulting from self-interest, of the testimony of the members of this one-business family, and, on the other hand, to the circumstances tending to indicate its untruthfulness.

The self-interest, of course, is manifest. The accident occurred in January, 1821, and when suit was brought against the three partners in April, it became evident that the one-half interest in the real estate to which Prances (who was one of the partners) held title, would be taken to satisfy the damage suffered by the injured child should the latter recover judgment. Prances, thereupon (on May 6th, 1921), conveyed this half interest to Mamie, who was not a partner (although her husband was), and in whose hands, therefore, it was thought it would be safe. Unless this deed can be shown to rest upon a bona fide valuable consideration, the injured child will be paid at the expense of this family enterprise, whereas, if such a proper consideration can be successfully established by the testimony of those interested in this family enterprise, the loss which would result to it in payment to the injured child will’ be avoided.

' Turning now to the accusing circumstances: The deed in question, now under attack as fraudulent, was drawn by and acknowledged before respondents’ counsel, an attorney of the bar of this state. It expressed a nominal consideration, was stamped with a one dollar revenue stamp, and recited: “The purpose of this conveyance is to vest in Mamie Virgil, wife of Andrew G. Virgil, the full and absolute title in fee-simple which was formerly enjoyed by Prances Virgil, grantor herein, and Mamie Virgil, grantee herein, as tenants in common.” If respondents’ counsel at the time he prepared this deed had known of this contract in writing, of course, he would have been only too glad to make the expressed consideration $2,500 instead of nominal, and would have stamped the deed accordingly, and the recited purpose, instead of what it was stated to be, would have been to carry out the terms of the written contract. Obviously, respondents’ counsel knew nothing of this written contract when he drew this deed. Could it be that if the contract had then, in fact, been made, respondents, with the purpose of having it performed, would not have advised their counsel of its existence? We think not.

Again, it is asserted that the conveyances of 1917, whereby title to the two properties was put in Frances and Mamie in equal shares as tenants in common, were made in pursuance of this alleged written contract of nine days before, one of the terms of which pledged Frances’ half in the real estate in question in what was, in effect, a mortgage to Mamie for a previous debt of $2,500 and interest, and provided for a voluntary deed from Frances in case of default. Yet this alleged written contract containing this mortgage feature was neither acknowledged nor recorded. The conveyances (of 1917) now said to have been drawn in pursuance of this alleged contract were drawn, executed and acknowledged in the office of Howe & Davis, who represented all the parties, and, of course, it is out of the question for anyone knowing the standing of these lawyers to suppose that this important contract securing such an interest in real estate would have been permitted by them to remain in its crude form and unacknowledged and unrecorded, if they had known of its existence. Standing alone, the conveyances are inconsistent with the alleged intent of the contract that Frances’ interest was to be contingent or dependent upon her paying $2,500 within three years with annual interest. These facts alone convince us that there can be no doubt that Howe & Davis knew nothing about these contracts, when, as the legal representatives of these parties, they prepared these conveyances, but if there was such a doubt it is fully removed by the fact that neither of these lawyers were called by their clients (who, of course, were the only ones who could call them) upon this point. This brings us to the -question, If this alleged written contract had, in fact, existed when Howe & Davis were employed by these respondents to prepare the deeds and to attend to the 1917 transfer of title, would knowledge of this written contract have been withheld from them by their employers? Decidedly, we think not. The evidence shows that Howe & Davis had represented these Virgils in numerous real estate deed and mortgage transactions before 1917. In fact, so far as the record shows, the conveyance of 1921, now under attack, seems to be the only one with which any of these Virgils ever had to do, in which they were not represented by Howe & Davis. What possible reason could the Virgils have had in withholding knowledge of this written contract from the attorneys they employed to do the conveyancing contemplated by its crude terms ? We think there could only have been one reason, and that was the non-existence of the contract itself at that time.

Coming now to the writing itself alleged to constitute this contract, which is photostatically reproduced in the record, it is dated August 16th, 1917, and as was stated in the opinion of Mr. Justice Katzenbach in the former appeal, “is written on a leaf taken from an old account book apparently by an unskilled person, and bears upon its face the evidence of being a home-made document.” At the former trial the learned vice-chancellor erroneously excluded questions in cross-examination tending to bring out and test the circumstances attending the drawing and signing of this document. At the present trial these questions were properly admitted, and, as a result, all of the respondents, and also Mamie’s sister, who was the subscribing witness, testified that the contract was prepared in his own handwriting by Louis Virgil in the presence of all of them, and that he composed the matter as well as the form employed without outside assistance of any kind. A photostat copy of a dictation test of Louis while on the stand also appears in the record. The dictation was of parts of the alleged written contract, and a comparison of the misspelled and distorted words written down by Louis as a result of this dictation, with the writing itself, convinces us that the latter, if, in fact, written by Louis at all, was never the creation of his unassisted brain and skill. This fact, in itself, gravely discredits the entire testimony of the five interested witnesses upon which the vice-chancellor relied. If that testimony was untrue in this important respect it was quite likely equally untrue with respect to the time when this so-called agreement was, in fact, concocted. At least, we think it quite clear, taking all the circumstances to which attention has been called together, that the respondents have failed to successfully bear the burden east upon them (as decided by this court in the former appeal) by the circumstances of this ease, of showing that there was, in fact, a tona -fide valuable consideration for the conveyance in question.

The decree is therefore reversed and the cause remanded to the court of chancery, in order that a decree may be entered by that court in accordance with the prayers of the bill in so far as justified by the views herein expressed.

For affirmance — Ealisch, Black, Campbell, JJ. 3.

For reversal — 'Prenchard, Parker, Eatzenbach, White, Gardner, Van Buskirk, McGlennon, Eats, Heteield, JJ. 9.


author: Per Curiam.

text:
    Jacob Ackerman, complainant-respondent, v. Walburger Ackerman et al., defendants-appellants.
    [Decided February 8th, 1926.]
    On appeal from a decree of the court of chancery.

      Mr. Jacot L. Newmamj for the appellants.

      Mr. Arthur B. Seymour, for the respondent.
   Per Curiam.

The complainant, Jacob Ackerman, seeks by this bill to compel his wife to deliver to him a deposit book of the savings department of the Orange National Bank, now in her possession, evidencing deposits standing to his credit on the 18th of August, 19.34, amounting to the sum of $4,874.35. He further seeks a decree directing, in effect, that the bank recognize him as the sole proprietor of this deposit. The hearing resulted in a decree adjudging that the complainant was entitled to the relief sought by him, and his wife appeals.

This husband and wife had been living separate and) apart for several years prior to the date mentioned. On that day he received a severe injury by falling from the roof of a house on which he was working as a painter, and he was taken to the Presbyterian Hospital, in Newark. His wife was advised by the authorities of the hospital of the accident to her husband, and she visited him at the hospital the next day. Her defense to the bill of complaint is that her husband, at her request, signed a paper on the day of her visit which reads as follows: "Aug. 19-34. Please make my bank account out on my wife, Walburger Ackerman, 18 Eagle Rock Ave., W. Orange, and me Jacob Ackerman. I want the account in both names;” that he signed the paper of his own free will, and for the purpose of vesting in her an undivided one-half interest in the deposit. The proofs show that, after coming into possession this paper, Mrs. Ackerman went to the home of a Mrs. Hilton, in Orange, where her husband had been boarding, taking with her a note, which, she says, her husband signed, by the terms of which Mrs. Hilton was requested to permit Mrs. Ackerman to enter the complainant’s room and take any personal articles from it which she should wish; that she was permitted to do this, and that, among other things, she took the deposit book of the complainant on the Orange National Bank; that she went, with the bank book and the first of the papers mentioned, to the bank, and that the cashier, after being shown the paper, wrote upon the deposit book the words "or Walburger Ackerman,” so that the hank account thereafter stood in the names of both the complainant and his wife.

The determination of the ease depends upon the truth of Mrs. Ackerman’s story that her husband signed the transfer paper of his own free will, and with the intention of vesting her with an undivided interest in the fund. The complainant denies her story, saying that if he signed the paper he did it unconsciously and without any knowledge of its contents, being, at the time when the paper purports to have been executed, in such a state, both physically and mentally, as to be unable to appreciate anything that was going on about him. He is corroborated in this by the testimony of attendants at the hospital. On the other hand, two of the children, who accompanied their mother to the hospital, confirm her story, except that they say their father promised to transfer the whole account to their mother. If this were all of the evidence that there was in the ease bearing upon the question presented for determination there might be some basis for the contention that the finding of the vice-chancellor was contrary to the weight of the evidence, but this is not the situation. The complainant, in rebuttal, produced an affidavit, made by the wife some months after the alleged transfer to her, and in response to a request of one of the officers of the Orange National Bank that she set out in an affidavit just what her claim against the funds in her husband’s account was, in which she stated, among other things, “I admit that the funds in this account are the property of Jacob Ackerman, subject to my claim against him for nonsupport covering a period of about ten years, during which time he contributed nothing to the support of myself and family, except paying the rent. I am making this statement in order to clarify my position in the matter and making record of my claim against the funds in said account.” This affidavit, taken in connection with the testimony of the plaintiff, and of the witnesses called by him to prove his mental and physical condition at the time of making the alleged transfer, fully justified the finding of the vice-chancellor and the making of the decree based upon that finding.

The decree under review will be affirmed.

For affirmance — The Chiee-Justice, Teenohard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskiek, McGlennon, Kays, Heteield, JJ. 15.

For reversal — None.


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    Robert Berry, respondent, v. Thomas E. Stewart et al., appellants.
    [Decided April 1st, 1926.]
    On appeal from a decree of the court of chancery.

      Mr. John 0. Reed, for the respondent.

      Messrs. Oole & Cole, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Ingersoll, and reported in S N. J. Mis. R. 1057.

For affirmance — Trenchard, Kalisch, Black, Katzenbach, Campbell, White, Gardner, Van Buskirk, Mc-Glennon, Kays, Heteield, JJ. 11.

For reversal — None.


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    Edna Brown, petitioner-appellant, v. William Brown, defendant-respondent.
    [Submitted February 12th, 1926.
    Decided May 17th, 1926.]
    On appeal from a decree dismissing petition for divorce.

      Mr. Merritt Lane, for the appellant.

      Mr. Edward J. O’Mara, for the respondent.
   Per Curiam.

Appellant and respondent were married September 3d, 1921. On December 17th, 1921, they ceased to cohabit. On December 23d, 1921, appellant instituted an action for separate maintenance, which was dismissed by a decree in May of 1922. On November 13th, 1923, appellant wrote her husband, requesting him to return .and live with her.

On August 15th, 1925, she filed her petition for divorce, alleging desertion as of December 17th, 1921. To this respondent filed an answer denying that he deserted appellant and also filed a cross-petition for divorce, alleging desertion of the wife, also as of December 17th, 1921.

The cause came on for final hearing, resulting in a decree dismissing the petition of the wife and also the cross-petition of the husband, upon the ground that neither party had established their cause of action by a preponderance of proof, duly corroborated. From this decree the wife appeals.

The evidence was conflicting, and our conclusion thereon is that the findings of the vice-chancellor, who heard the cause and advised the decree, should not be disturbed.

The decree below is therefore affirmed.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, White, Van Buskirk, MoGlennon, Kays, Hetfield, JJ. 13.

For reversal — .None.


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    James Clark, appellant, v. William Kinnaugh, respondent.
    [Decided May 17th, 1926.]
    On appeal from a decree of the court of chancery.

      Mr. Alexander Simpson, for the appellant.

      Messrs. Porter, Zinc & Laferty and Messrs. Lindabury & Steelman, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Bentley.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Black, Katzenbach, Campbell, White, Gardner, Van Buskirk, MoGlennon, Kays, Hetfield, JJ. 13.

For reversal — None.


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    Ira R. Crouse, complainant-appellant, v. Herman Sloan et al., defendants-respondents.
    [Submitted February 11th, 1926.
    Decided May 17th, 1926.]
    The facts in this case, held not to establish any right in complainant to an easement in the defendants’ adjoining -building.
    On appeal from a decree advised by the late Vice-Chancellor Foster, who fled the folio-wing conclusions:
    “Complainant seeks an injunction to protect an easement for the benefit of property owned by him in Fords, in Middlesex county. The easement is claimed to arise out of the following circumstances:
    “About 1920 one Kish was the owner of two lots on the corner of Hew Brunswick avenue and Corrielle street, in Fords. On the comer lot he erected a two-story building, which was rented to the defendant Sloan, who has since conducted a dmg store therein, and which is now owned by the defendant Mrs. Sosin.
    “In September, 1920, Kish, because of financial difficulties, conveyed the two lots to Mr. Spencer, his attorney, in trust. In September, 1931, Spencer reconveyed the inside lot to Mrs. Kish, retaining title to the comer property then occupied by Sloan-.
    “On this inside lot Kish, late in 1921 and the early part of 1922, erected a two-story building, now called the Butler Building, and this is now owned by complainant. This building originally contained two stores on the ground floor and a stairway leading to the living apartments above where Kish and his family lived, and to reach this apartment they used the stairway in the Butler Building. One of these stores was rented by Kish to the James Butler Company, and the other was occupied as a butcher shop.
    “In the early part of 1922 Kish again became financially involved through his building operations; among-his creditors was complainant, a lumber dealer. To obtain his money and at the solicitation of Kish and Spencer, complainant agreed to take title to the Butler. Building, in settlement of his claims and pay the debts against it, if a building and loan association mortgage could be obtained.
    “By a deed dated Rebruary 11th, 1922, Kish and his wife conveyed the Butler property to complainant and between this date and May 5th, 1922, when the deed was recorded, Kish was employed by complainant to remove the stairway from the Butler Building, and also to remove the partition between the two stores, and on the completion of their removal, complainant, in December, 1922, gave the James Butler Company a lease on the enlarged or single store in the Butler Building for five years, with the privilege of renewal for five years longer.
    “After the stairway had been removed from the Butler Building, Kish, and later a tenant named Schoenbrown, who occupied the apartment over the enlarged Butler store, through an oral permission granted to complainant by Spencer, who still held title to the comer drug store property, made use of both the inside and outside stairway of the comer building to go to and from the second floor of the Butler Building. During all this time the defendant Sloan occupied the lower floor of the corner building as a drug store and lived in the apartment over it.
    “On September 17th, 1923, Sloan purchased the drug store property from Spencer. Sloan and his attorney-state that before completing this purchase they spoke to- complainant about stopping the use of the stairways in the corner building by his tenants, and that he promised them to do so and to replace the stairway in his own building; complainant denies this. In the deed from Spencer to Sloan it is expressly stated that the grantee 'can close up, discontinue and shut off any entrance or entrances leading to the building adjacent.’ This Sloan proceeded to do soon after obtaining title, and about December 34th, 1933, the Sloans conveyed- the premises to the defendant Mrs. Sosin, who is the mother of Mrs. Sloan.
    “Complainant relies for relief upon the principle stated in Kelly v. Dunning, 43 N. J. Eq. 62; affirmed, 46 N. J. Eq. 605, but the facts do not bring this case within that principle, viz., that before the separation of title a use was made of part of the premises, which gave rise to an easement, and which had been so long continued and was so obvious or manifest as to show it was intended to be permanent. Prior to the separation of title the entrances and stairways in the corner building had been used by complainant’s tenants for a very short period without any indication of permanency, under an indefinite form of permission from Spencer. This permission was not in writing, it was not for any definite time and it was not irrevocable, and in his deed to Sloan, Spencer expressly authorized Sloan to revoke this permission at his pleasure, by closing up or shutting off the stairways. And this permission was, in effect, revoked by the terms of this conveyance, as well as by the transfer of title. Klein v. Stamler, 124 Atl. Rep. 366. The facts in the ease show complainant’s claim to be a demand for relief, as an exception to the statute of frauds, and bring it within the doctrine of Lawrence v. Springer, 49 N. J. Eq. 289, and later cases, in which that case has controlled, and in which it is held in view of the statute of frauds, ‘an easement cannot be in this state imposed on land by the force of parol evidence,’ unless the parol contract has been proven to the point of demonstration and the repudiation of it would work irreparable injury. See, also, Magnolia Construction Co. v. McQuillan, 94 N. J. Eq. 342.

    “The facts established afford no such demonstration, and are not sufficient to entitle complainant to the relief he seeks.
    “I will advise that the bill be dismissed.”
    For the appellant, John A. Goan.

    For the respondents, Louis 7. Sosin.

   Per Curiam.

The decree under appeal will be affirmed, substantially for the reasons contained in the conclusions of Vice-Chancellor Roster. There seems to be some slight confusion in the ease as to whether the “Butler Building” had originally one store which ivas converted into two^ or two stores which were converted into one. Ror the purpose of decision it is immaterial, the revelant fact being that at the time of that conversion the stairway in the Butler Building was taken out, and access to the upper floors had through the Sloan building. In the reasoning and result as appearing in, the conclusions we fully concur.

The decree is affirmed.

For affirmance — The Ci-iiee-Justice, Teen chard, Parker, Minturn, Kahscii, Black, Katzenbach, Campbell, White, Gardner, Van Buskirk, McGlennon, Kays, Heteield, JJ. 14.

For reversal — None.


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    Effie F. Dennison, respondent, v. Wilbun N. Dennison, appellant.
    [Decided May 17th, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Berry, whose opinion is reported in 98 N. J. Eq. 280.

      Messrs. Lehlbach, Johnson & Ormond, for the respondent.

      Mr. Hugo Woerner, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the.court below by Vice-Chancellor Berry.

For affirmance — The Chiee-Justice, Tkenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, White, Gardner, Van Buskirk, McGlennon, Kays, Hetpield, JJ. 14.

For reversal — None.


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    William C. Glass, petitioner-respondent, v. Euphemia M. Glass, defendant-appellant,
    [Submitted February 13th, 1926.
    Decided May 17th, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder.

      Mr. Merritt Lane and Messrs. Peck, Davis & Gray, for the appellant.

      Messrs. Tiffany, Brugler & Wittreich (Mr. G. Earle Brugler, of counsel), for the respondent.
   Per Curiam.

We have examined with care the evidence in this case, in the light of the argument of counsel, and are satisfied that the decree is fully supported by the evidence and is right. The decree will therefore be affirmed.

For affirmance — Tebhci-iakd, Paekee, Kalisch, Black, Katzefbach, Campbell, White, Gaedfeb, Vaf Buskiek, MoGlekfof, Kays, Heteield, JJ. 12.

For reversal — None.


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    Mary V. Hebble, respondent, v. Amos S. Hebble, appellant.
    [Decided May 17th, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 99 N. J. Eq. 58.

      Mr. Frank B. Pentlarge, for the respondent.

      2Iessrs. McDermott, Enright & Carpenter, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by. Vice-Chancellor Backes.

For affirmance — The Chiee-Justice, Teen chard, Parker, Minttjrn, Kalis ch, Black, Katzenbach, Campbell, White, Gardner, Van Buskirk, McGlennon, Kays, Heteield, JJ. 14.

For reversal — Hone.


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    In the matter of the application of Josephine S. Hubert et al., from an order to sell lands limited over.
    [Decided May 17th, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is reported in 98 N. J. Eq. 85.

      Mr. Samuel Craig Cowart, for the appellant.

      Mr. Harrison P. Lindabury, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Baches.

For affirmance — Parker, Minturn, Kalisch, Black, Katzenbaoh, Campbell, White, Gardner, Van Buskirk, MoGlennon, Kays, Hetpield, JJ. 12.

For reversal — None.


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    Louis Kuskin et al., appellants, v. Milton Guttman et al., respondents.
    [Decided April 1st, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Berry, whose opinion is reported in 98 N. J. Eq. 617.

      Mr. Edward R. McGlynn, for the appellants.

      Messrs. McOarter & English and L. Benjamin Glueclcjield, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Berry.

For affirmance — Trenchard, Parker, Kalisch, Black, Katzenbach, Campbell, White, Gardner, Van Buskirk, McGlennon, Kays, Heteield, JJ. 12.

For reversal — None.


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    John Murphy et al., appellants, v. William Henry Markis, respondent.
    [Decided April 1st, 1926.]
    On appeal from a decree of the court of .chancery advised by Vice-Chancellor Ingersoll, whose opinion is reported in 98 N. J. Eq. 158.

      Messrs. Cole & Cole, for the appellants.

      Messrs. Bourgeois & Coulomb, for the respondent.
   Per Curiam.

. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Ingersoll.

For affirmance — Tkenchakd, Paekee, Kalisch, Black, Katzenbach, Campbell, White, Gaednee, Van Buskiek, McGlennon, Kays, Heteield, JJ. 12.

For reversal — None.


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    Louis Peragallo, respondent, v. Philip Oneto et al., appellants.
    [Decided May 17th, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 98 N. J. Eq. 7A

      Mr. Anthony P. La Porta, for the respondent.

      Messrs. Stuhr & Vogt, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin.

For affirmance — Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, White, Gardner, Van Buskirk, McGlennon, Kays, Heteield, JJ. 13.

For reversal — None.


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    Peter S. Scott, respondent, v. John E. Curtis et al., appellants.
    [Decided May 17th, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, who rendered the following opinion :
    “Complainant is entitled to foreclosure decree for the $40,000 principal, with interest, from March 18th, 1924.
    “I am entirely satisfied that the defense of bonus or usury has not been sustained, and I am of the opinion, also, that the defense of estoppel has not been sustained. It seems to me clear, from the testimony of the defendant Curtis, that there was an agreement made between Scott and Curtis on October 10th, whereby Scott agreed that Curtis might have until November 10th within which to pay the accrued interest, which accrued on September 18th, without entitling the complainant to the acceleration of the principal; in other words, that he would waive that provision if the six months’ interest was paid on or before November 10th, plus interest on that installment of interest, and that Curtis agreed to do that. That is the defendant’s own testimony. It is not denied by Scott.
    “As to the defendant Loizeaux Lumber Company, Mr. Loizeaux, the .president of that company, testified that he was told of that contract by Curtis on November 7th or November 6th, and that he had in his pocket moneys, in addition to the $1,200 of which he made tender, sufficient to pay interest on that installment of interest, but that neither of them made any tender of further interest or made any mention of it. So far as the testimony before me is concerned, no mention of that was made on either side at that conversation of November 7th. I am unable to spell out of the conversation that has been testified to as having occurred on that day, and repudiation of that bargain. The testimony is that request was made of Scott for an extension; that Curtis had no money and was hard up, and that the extension was denied. There is no term of the extension mentioned; nothing in that conversation to indicate that the extension was to be from November 7th; nothing to indicate that the thirty-day extension, which had previously been agreed upon, to November 10th, was not still valid and binding, and the tender was made of the $i,200, but not of the further amount agreed to be paid for the thirty-day extension of time for payment of the interest, and that further amount was never paid and never tendered thereafter. If defendant on November 7th, or at any time before November 11th, had tendered, in addition to the $1,200 mortgage interest, the interest on that $1,200, from September 18th, in accordance with the agreement, complainant would have no right to maintain this suit. But that was not done, so that it seems to me that from and after November 10th this complainant had the right again to insist, or thereafter insist, upon the strict terms of the bargain made in the mortgage, and that he did do.
    “There is a conflict of testimony as to just what was said on November 7th. Mr. Loizeaux testified that $2,500 was demanded by Scott as a consideration for letting the principal remain for four and a half years more. He said that he replied that he never had paid blood money and would not do it now. That conversation is denied by Scott. Curtis, who was present at the conversation, does not say anything about the blood money conversation, although my recollection is that he did say Scott demanded $2,500 as a condition for letting the money remain. I cannot see, however, that that estops Scott from insisting upon the terms of the mortgage. If he had made that demand it would not have been an equitable demand to make; it' would not have been a decent thing to do, but there was nothing to compel him. to forego his right to the principal from and after November 10th, if the bargain, which had been made on October 10th, was not complied with.
    “The only thing which I had some doubt about was the matter of costs. Now, apparently, from the correspondence and from his own testimony, Scott was only moved to require the payment of this principal because of the fact that he had made some statement to the Pitman Trust Company, that he would have this $40,000 to invest, and told them that he would accept these mortgages and loan the money on these mortgages, and his demand for $1,200, according to his testimony, was because that amount was stated to him by the Pitman Trust Company as being the amount to which they were entitled under the circumstances. Scott says in his letter to Curtis that the only way to have an extension of time was by a legal commission of three per cent., amounting to $1,200. I don’t know where he got the idea that that was a legal commission. He certainly did not take any trouble to investigate the liability he was under, nor did he take the trouble to explain to Curtis or Loizeaux why it was that he was asking this $1,200. He laid himself open thereby to the suspicion which has been mentioned, and which, naturally, was aroused, that he was asking this $1,200 for himself. For that he has only himself to blame. The proofs do not satisfy me that he was asking that for himself, but he laid himself open to that attack, and if he had been courteous enough to explain why it was he was asking this money, why it was he had to take this up — the situation he found himself in — it might well have been that the matter could have been arranged; Curtis or Loizeaux might have explained to him that it was not necessary for him to pay three per cent, commission, or that it would not have been necessary for the borrower to pay that commission. In view of that fact they might have arranged to pay something which might have satisfied everybody. But he chose to keep that to himself and not disclose it to them.
    “I am inclined to think, under the circumstances, I will not award costs other than the costs as upon an uneontested foreclosure suit.

      “Mr. Lane — Your honor has mentioned November 7th— a conference. I think it might be looked upon that your honor was speaking of a talk as to the extension. There was no talk of extension on November 7th.
    “The Court — No; I did not mean extension as to interest; there was nothing said about that on November 7th. The request on that day was for renewal or extension of the principal, an ‘extension to fulfill the unexpired portion of the original term of the mortgage/ was what Mr. Loizeaux called it, I think.”

      Mr. Charles A. Otto, for the respondent.

      Mr. Merritt Lane, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Buchanan.

For affirmance — The Chief-Justice, Teefchaed, Pabkee, Mintubn, Kalisoh, Black, Katzehbach, Campbell, White, Gabdkee, Van Buskiek, McGlekkon, Kays, HetFIELD, JJ. 14.

For reversal — None.


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    Michael J. Tansey, complainant-appellant, v. Belleville Relief Association, a body corporate, defendant-respondent.
    [Submitted February 13th, 1926.
    Decided May 17th, 1926,]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bentley, who delivered the following opinion :
    “This is a motion to strike out a bill of complaint, upon the ground that the bill and sworn testimony of the complainant conclusively show that the pleading will not lie.
    “The pertinent allegations of the bill are, that the defendant adopted a resolution authorizing the sale of the land in question, and passed a second resolution authorizing an agent to negotiate the sale thereof; that the agent entered into .an agreement to convey the land to the complainant for such a sum of money as would liquidate the defendant’s debts, to be, however, not less than $25,000. It is then said that the complainant undertook the usual and necessary steps to prepare for taking title, but that the defendant entered into an agreement with some other persons to convey the property. The prayer is for specific performance of the complainant’s contract with the agent of the defendant.
    “Pursuant to an order, the complainant presented himself and was cross-examined by the defendant, from which it appears that the contract which he seeks to have enforced was not in writing, and that there was no memorandum thereof in writing signed by the defendant, or ‘some other person thereunto by him or her lawfully authorized,’ as required by the fourth subdivision of section 5 of ‘An act for the prevention of frauds and perjuries.’ 2 Comp. Slat. p. 2612. There was no memorandum, letter, note or other documentary evidence of the alleged contract produced or proved, and, therefore, it is clear, of course, that none exists or can be proved upon a final hearing if the cause were permitted to proceed thereto. This brings the motion within the authority of Strauss v. Rabe, 97 N. J. Eq. 208; affirmed, 98 N. J. Eq. 700. In that ease it was said:

      “ ‘From these cases it is argued, and, I think, with soundness, that where a bill upon its face appears to set forth a valid cause of action, but it is otherwise made to appear by the complainant’s own proofs, such as the verifying affidavits or schedules annexed to his bill, or otherwise, that in all truth and honesty the bill does not exhibit the true state of facts, and that the latter preclude all possibility of his success, there is inherent power in the chancellor to dismiss the bill.’
    “It is true that the pleading in question does not misstate the facts, but there is an ambiguity which the examination of the complainant clears up, and, for that reason, I feel that the defendant’s motion should be granted.
    “In the brief presented on behalf of the complainant, the argument would indicate that he has mistaken the theory and purpose underlying the application of the defendant. He cites a wealth of authorities to prove that the agent of the defendant with whom he treated was lawfully empowered to bind the defendant by a valid contract, but there is not one word to show that such action was ever taken by the agent or by his principal. This motion would never have been undertaken had the agent ever entered into a contract, as required by the statute. Of course, it is elementary that if the principal cannot be held on an oral promise to sell or convey made by himself, it is equally clear that he cannot be compelled to convey on the basis of such a promise made by his agent, irrespective of how firmly the authority of the agent is established.
    “I will advise an order striking out the bill.”

      Mr. Michael J. Tansey and Messrs. Kraemer & Siegler, for the appellant.

      Mr. Nathan H. Berger, for the respondent.
   Per Curiam.

The decree will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Bentley in the court of chancery.

For affirmance — Trenchard, Parker, Minturn, Kaliscti, Black, Katzenbach, Campbell, White, Gardner, Van Buskirk, MoGlennon, Kays, Heteield, JJ. 13.

For reversal — None.


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    May E. Van Dyke, appellant, v. Jacob C. Van Dyke, respondent.
    [Decided May 17th, 1926.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Ingersoll, who- rendered the following opinion:
    “This is on petition for divorce alleging adultery with one Emily Stevens during the years 1909 to 1923, inclusive.
    “Emily Stevens, with whom the adultery was alleged to have occurred, was a young woman, who had, as a girl of about the age of fourteen years, been brought to the home to help in the care of the children and other services in the house, and had remained as a member of the family, at least, about seventeen years. During, at least, the latter part of this time, she was employed elsewhere, but remained at and in the home and was treated as a member of the family, and, to some extent, at least, as were the children.
    “Mrs. Van- Dyke’s is the only testimony tending to show any familiarity between the defendant and the said Stevens. Two other witnesses testify to having seen them together upon the public streets. This, of course, is entirely insufficient to prove adultery.
    “Neither Van Dyke nor Miss Stevens deny the charge, although she was upon the witness-stand. This has been held to be an important circumstance in corroboration of the testimony presented by the petitioner. Bibby v. Bibby, 33 N. J. Eq. 56; Moyer v. Moyer, 81 Atl. Rep. 1111.

      “In both of these eases the testimony of the defendant’s guilt was from the lips of others than the petitioner.
    “Testimony was admitted in evidence that the co-respondent had confessed to misconduct with the defendant. At the time this statement of confession was admitted, it was stated by the court that it was not admitted as proof of the facts alleged, but for another purpose. It could not have been admitted as proof of guilt. Howard v. Howard, 77 N. J. Eq. 186, and eases there cited.
    “It will be noticed that the petition charged adultery during each year for a period of fifteen years.
    “This did not comply with rule 259 of this court, but the defendant preferred to meet the charges, and, after the testimony on behalf of the petitioner had been closed, an adjournment was taken to permit the defendant to present such defense as he might be advised to be necessary.
    “The testimony on behalf of the petitioner did not prove adultery, and I am convinced that the solicitor of the petititioner was justified in his statement: £I feel, if your honor pleases, that while I know the responsibility that I may be taking as counsel in this case, there is nothing here for the defense to meet, and I, therefore, rest.’

      “There is no proof of adultery produced by the petitioner, and there is no sufficient corroboration of any acts sufficient for this court to say there was any criminal desire on the; part of the defendant, although numerous opportunities existed to gratify such desire did it exist.
    “A decree will be advised dismissing the petition.”

      Messrs. Wadding Lon & Matthews, for the appellant.

      Mr. Edmund G. GashiTl, Jr., for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Ingersoll.

For affirmance — The Chiee-Justice, Trenohard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, White, Gardner, Van Buskirk, McGlennon, Kays, Heteield, JJ. 14.

For reversal — None.


text:
    Giancinta Zezima, defendant-respondent, v. Luciano Zezima, complainant-appellant.
    [Decided May 17th, 1926.]
    On appeal from a decree in the court of chancery.

      Mr. Nathan H. Berger, for the appellant.
    (Counsel for respondent submitted no argument.)
   Per Curiam.

This was a bill filed by a wife against her husband for maintenance, pursuant to the statute. The averments of the bill are that the defendant abandoned his wife without any justifiable cause; that he went through the form of a marriage ceremony with another woman, with whom he has ever since been living, and that for some years past he has refused, and still refuses, to maintain and provide for the support of the complainant.

The defendant admits in his answer the averments of the bill, but asserts, in justification of his conduct in refusing to support the complainant, that she had on various occasions committed adultery with one Peter Coloriso, and also with his (defendant’s) brother, Mario.

On the hearing of the cause had before the vice-chancellor practically no attempt was made by the defendant to prove the truth of his charge against the complainant with relation to her alleged illicit intercourse with Coloriso. He did attempt, however, to prove the charge of adultery with his brother, Mario, and called the latter for that purpose. Mario testified positively on his direct examination that he frequently had had sexual intercourse with the complainant/ but on his cross-examination he denied just as positively that he had ever at any time had such intercourse with her. Naturally, the vice-chancellor, who heard the cause, gave no credence to the testimony of this witness. He considered, however, that other facts proved in the case showed the existence of a desire on the part of the complainant and her brother-in-law to commit adultery an opportunity to satisfy that desire, and that the gratification thereof, therefore, should be presumed. As a result of this view of this testimony he advised a decree dismissing the bill of complaint, and from the decree entered upon this advice the complainant has appealed.

We concur in the view of the vice-chancellor that the testimony of the witness Mario is worthless and affords no support to the charge of adultery brought by the defendant against the complainant. We do not concur in his conclusion that the additional proofs submitted on the part of the defendant- are of such a character as to justify a finding of guilt on the part of the complainant. On the contrary, an examination of these proofs leaves us in grave doubt as to whether a desire for sexual relations ever existed between these two people. It is an entirely settled rule of law in this state that a party charging adultery in a proceeding like the present must establish the charge by evidence that will satisfy the human mind and leave the careful and guarded judgment of the court free from conscientious and perplexing doubts, in order to justify a finding of its existence. Marchese v. Marchese, 129 Atl. Rep. 131, and cases cited. That the testimony submitted in the present case does not, in our opinion, measure up to that standard we have already indicated.

The decree under review will be reversed.

For affirmance — None.

For reversal — -The Chief-Justice, Trenchard, Parker, Minturn, Kalis ch, Black, Katzenbaoi-i, Campbell, .White, Gardner, Van Buskirk, McGlennon, Kays, Hetfield, JJ. 14.


text:
      November Term, 1775.
    The King against Esther Barber and others.
   On Habeas Corpus for to bring the Body of Beulah, a Negro Girl.

BY the Admiffion of the Counfel, it appeared that ‘Beulah the Negro Girl, brought up by the Habeas Corpus, and now before the Court, is the Daughter of a Negro Man and Negro Woman, the firft named David, and the other named Dinah, both of whom formerly belonged to Caleb Haines, of the City of Burlington, which laid Negroes David and Dinah, v ere fet free by the laid Caleb Haines in his life time, and before the Birth of the faid Girl Beulah, without having given any Bond purfu-ant to the Act of AiTenibly, palled in the twelfth and thirteenth Years of her late Majefty Queen Ann ; for which Realon the faid Manumilfion was alledged to be void.

The Court having heard the Arguments of Counfel, as well for the faid Dither Earlier and others, as for the faid Beulah, at the Term of May la ft, and now again at this prefent Term, and having fully coitlidered thereof are of Opinion, That the faid i/ianumiiiion by the faid Caleb Haines, of the faid David and Dinah, the Parents of the faid Beulah, was good in, Law againS the laid Caleb Haines and thofe claiming under him, notwitbftandmg the not giving Bond as aforefaid; and that the fame Beulah is entitled to her Freedom under the faid Manu-miffioh againft the faid Caleb Haines, and all claiming under him; and do order her the faid Beulah to be delivered up from out of the Cuftody of the faid Either Barber and others, in which ihe hath been illegally detained.


text:
      April Term, 1782.
    The State against Jacobus Vanhuys.
    Kinfey, Elias Boudinot, and the Attorney General fog the Negro.
    Sergeant, and Paterfon, for Defendant.

      On Habeas Corpus for Negro Will Claiming his Freedom*

   THE Court having heard the Arguments of Counfel on the Part of Negro Will, and the Reafons affign-ed for and againft his Freedom, and the Evidence in Support thereof ; It is ordered by the Court that the faid Negro Will be, and he is Hereby difcharged and fet Free from the faid Jacobus Vanhuys, on Motion of Mr Deare.


text:
      September Term, 1782.
    The State against Edmund Bainbridge.
   : On Habeas Corpus of Negro Nelly.

IT appearing to the Court, and the faid Edmund Bain* bridge conceding, that the laid Negro Nelly was formerly the Property of Edmund Bainbridge, the elder, •f Maidenhead, deceafed, who let Ms Daughter Abigail, late the Wife of Thomas Biles, of Bucks County in Pcun-fylvania, deceafed, gave her when very young; that many Years afterwards he made his Will and bequeathed her to his faid Daughter Abigail, during the Life of his faid Daughter, and to her lilue, and did further order, that if ilie fhould die childlels, then the faid Negro Nelly fhould be fold, and the Money appropriated as mentioned in his faid Will; that the faid Abigail Biles who furvived her Hufband and her Father, did by her Will dated 30th April 1779, fet forth and declare, that the faid Negro Nelly had by her faid Father been preiented to her on a New-Year’s Day, when ilie was a Child, and therefore, both from that Gift and from bringing her up, hie had a better Right to difpofe of her than any other Perfon, and did therein order and direct, that the laid Negro Nelly fhould be manumitted and let free, a thing which ilie had very much at Heart; that the ibid Negro Nelly refided in the State of Pennfylvania at the Time of the paffing of the Act for the gradual Abolition of Slavery, lit March, 1780, and until thefirft of November in the fame Year, the Term and Period allowed and fixed in the faid Aft for regifterbg Slaves and for feme Time afterwards ; that ilie was not regiitered as the faid Act requires, and that file is not within, the Exceptions iped-fied therein.

⅛: The Court having fully confidered the Premifes, are unanimoujly of Opinion, That the Marsumiffion of the laid Negro Nelly by the faid Abigail Biles, Daughter of the afore faid Edmond Bainbridge, is good in Law agaiidt' all Perfons claiming under either of them ; the faid Edmund Bainbridge, having given her to his faid Daughter, when ilie the faid Negro Nelly was a Child, and his faid Daughter having directed by her Will that die fhould be manumitted; and further that the faid Negro Kelly, not having been regiitered as the above mentioned Ad of the State of Pennfylvania requires, and thercioie entitled to Freedom in that State, is not by Law put íu a ■worfe Situation here : It is therefore Ordered, 1 hat the faid Negro Nelly be difeharged and fet at Liberty from the laid Edmund "Bainbridge. On Motion of Mr. Morri? for Mr. Houfion-


text:
      September, 1782.
    The State against Lewis Mc. Knight.
   On Habeas Corpus to bring the Body of Negro Calar Tite.

THE Defendant having returned the Habeas Corpus, and brought up the Body of the faid Negro Caefar Tite, It is ordered that the Defendant enter into Security in the Sum qf Two Hundred Pounds to bring up the Body of the faid Negro Casfar on the fecond Tuefday in November next, and abide the Judgment of the Court refpefting the faid Negro, and that in Cafe the faid Negro fhould be adjudged by this Court free, that the faid Lewis JVFKnigfat ilia'll pay for the Service of the faid Negro from this Time,

Recognizance accordingly.


text:
      September Term, 1782.
    The State against Enloes Philpot.
   WHEREAS, it hath appeared to this Court, upon the Affidavit of Jack Tappen, that the Defendant holds a certain Anthony Tappen in Bondage and Slavery, without lawful Authority for the lame as the laid Jack alkdgeih : therefore, Ordered, on Motion of Mr. Leaxe for the laid Anthony, that a W rit of Habeas Corpus a l faciendum fubjiciendum et Recipiendum do iifue, returnable to this Court at the next Term.


text:
      November Term, 1782,. ■ :
    The State against Lewis Mc. Knight.
   On Habeas Corpus of Negro Cosfar Tite.

AGREEABLY to the Command of the within Writ, I have here in Court the Body of the within mentioned Caefar Tite, and do lav that the faid Negro Tite is my Property, being bought of Kenneth Hankinfon, Efquire, for valuable Conlideration, and he is not a free Man ; but I am willing and defirous to conteft that Property'’ by a Jury of the Country, agreeably to the Laws of this State, and pray that it may not be taken from me without a Trial by Jury, &c.

LEWIS Mc.KNIGHT.


text:
      IN THE SAME CAUSE OF The State against Lewis Mc. Knight.
   IT appearing to the Court, that the faid Negro Cafar Tite, brought up by Habeas Corpus, and now before the Court, heretofore belonged to Grace Tite, of the County of Monmouth, who by her laft Will and Tefta-nient ordered that he ihould be free when he attained the Age of Twenty-one Years, till which period he was to ferve Thomas Leonard of the faid County of Monmouth ; that the faid Thomas Leonard joined the Enemy fome Time before the Expiration of the faid Service, and the faid Negro Caefar Tite was fold at Public Ven-due, with other confifcated perfonal Property of the faid Thomas Leonard, hr the Ccmmiiboner; of forfeited El-tates for the County of -Monmouth, and bought b\ David Forman, Ei’q. who afterwards ibid him to Kenneth Kankinibn. Efq- and he to the ihia Lewis M'Erught the Defendant ; that no Bond vas given by the laid Grace Tite, puriuant to the Ad: of Afetnbly, p. tied in the twelfth and thirteenth \ ears cf the Ltt Creer. Am; : And that the laid Xecro C.dar Tire is now abose Twenty-one Years old, A v;/, of the Age of about Twenty-four cr Twemy-f.'. e.

The Court having heard the Arguments of Counfel on both tides, and fully confuí ere d thereof, are unammoufly of Opinion, That the laid Manum-iffion is good in Law againft all Perform claiming under the faid Grace Tite, notwithftanding Bond tvas not given as aforefaid ; and do order, on Motion of Mr» Bloomfield for the Attorney-General, that the Negro Carfar Tite be difcliarged and let at Liberty from the laid Lewis M'Knight.


text:
      September Term, 1783.
    Mercy Hill against William Leddell.
   b, ILbrtn Cerina fr 0!f

IT '‘'ting a’lnWd bv the Cour.fel 'or the .. tl h teats lb1! the P'aiitt.if, that L.e is Ae Doughttr cf 3 certain jumter I cc, a ^ A pro chv. c. he-etc’ci e hviongi.ig to h.r.td Lee cf the Tour tfcv antes in the Cekiy of F Icuvdru ttts ?».\. net. Con mors, eJth tf MaffaJui-’’m- a-o DY'vcic.mc Yi’A „ nee-born iwhe Inbau Y. over ; fist ir her Inhov y e v ¡vv . fprenive to jm v= Power c- th..t Plv e, vito whom, or his Ali.gns u e _ n cdj-vr h cr1”-, arfi then h,l cured xbr her L:seh-hceb ‘c AT rer r T>rcc a- c Aer ¡r»c Pevcnw Atu lly do : t a. . "íterv, ;.rd- ibe v eo Lv lone Means (ol«i m a hh-.ve, .: I b\ fwAv Transfers mm SAe- came ; t An.gtp i'Vo' :rc iAAYAv of the Defetic. ,.t L a ¡Lo. Leadtil

The Court having heard the Teftimony, with iundry Affidavits offered and read, to prote the Truth of the foregoing Allegations, and hating alio heard the Arguments of Counfel on both Hides, and maturely conil-dered thereof, are. unanimoifly rfr pirion, 'i hat the faid Mercy Hill-is entitled to her 1 reedom, and ought not to be held in Slavery ; and do accordingly adjudge and order that the faid Mercy Hill be difeharged and let at Liberty from the laid William Leddell, on Morion of Mr. Morris in behalf of Mercy Hill.


text:
    The State against Tierck Tenbroeck.
   On Habeas Corpus of Negro Philip for Manumijfton.

THE Court having fully confiderecl the Evidence, and the Arguments of Counfel in .this Caufe, are unanimoufly of Opinion, and do adjudge, that the faid Negro Philip be difeharged and let at Liberty from, the laid Tierck Tenbroeck, and alfo from John Vanhorne of Rocky-Hill, in the County of Somerfet, who hath appeared and claimed the faid Negro Philip, On Motion of Mr. Paterfon for the State.


text:
      May Term, 1784.
    The State against Adrian Post.
   On Habeas Corpus of Negro Charles and Wife.

In November Term, 1781. (p. 467.)

ON the hearing of this Cafe, the Court adjudged in favor of the difeharge of the Negroes, and ordered the Defendant to deliver them to the Sheriff of Bergen, to remain in his Cuftody, until the further Order of the Court.

And now, on Motion of Mr. Elias Boudinot for Ni~ cholas Covenho~en, Mafter of the Laid Negroes, it is or~ dered by the Court, that the Sheriff of Bergen, do on fervice of this Rule, deliver to the Laid Nicholas Coven~ hoven, or his Order, the Laid Negro Charles and Wife.


text:
    April Term, 1785.
    The State against Benjamin Applegate.
   On Habeas Corpus of Negro Peter Ridley, claiming to be manumitted.

~~HE Laid Negro Peter being brought into Court by I Habeas Corpus, and it appearing to the Court on Teflimony, that the lltid Negro Peter is the Son of a certain William Ridley, a free Negro and his Wife Di~ anna, a Negro Woman fometime the Property of Doh lans Hegenian, and who became free before the Birth of the laid Negro Peter, and that the Laid Parents of the laid Negro Peter have ever fince lived and been reputed as free.

The Court are of Opinon and do adjudge, that the faid Negro Peter was free~born, and is entitled to he difchar-ged as a free Man ; and do order that he be difcharged accordingly, on Motion of Mr~ Paterfon for the State~


text:
      May Term, 1785.
    The State against John Vanhorne.
   On Habeas Corpus of Negro Prime, claiming his Freedom*

THE Court in September Term, 1784. (p. 125-) on return of the Habeas Corpus, obliged Defendant to enter into Recognizance with Security in /14o. conditioned for the Appearance of the faid Negro Prime at the next Term, to abide &e. and not depart &c.

November Term, 1784, (p. T95.) Recognizance continued.

April Term, 1785, (p. 299*) Argument poitponed, and Recognizance continued.

And now (May Term, 1785.) Moore Furman, Efquire, Agent of forfeited Eftates for the County of Hunterdon, having applied to the Court, and reprefented that the State hath a Claim to the laid Negro Prime; it is order, ed by the Court that the faid Negro Prime be delivered into the Cuftody of John Anderfon, Efquire, Sheriff of Hunterdon, until a Trial of the Property can be had, and until the further Order of the Court.


text:
      Moore Furman, Esq. Agent of Forfeitures for the County of Hunterdon-against John Eauhouse, In Detinue.
   This action having been brought by Agreement of Parties under the Direction of the Court, to try the Property of a certain Negro Prime, and a Verdkft and Judgment having paffed in favor of the Plaintiff, It is ordered by the Court, on the Motion of Mr- Boulton for the Plaintiff, that the faid Negro Prime now in the Cuftody of the Sheriff of Hunterdon, agreeably to an Order of thi~ Court of May Term laft, be delivered to the faid Moore Furman, Efq. Agent of Forfeitures for the County of Hunterdone.


text:
    November Term, 1785.
    Negro George against Barnt De Klyn.
   On Habeas Corpus and complaint of cruel rreatment.

~F"HE hearing of this Caufe coming on, and the Evi.. I dence being gone through, Mr. Elias Boudinot on behalf of the Negro, prayed that Mr. De KIyn thould o.. blige himfelf not to fend the faid Negro George out of the State, and the Court has ing confidered thereof, re. quired Mr. Dc Klyn fo to do, v~ hich he accordingly did in open Court.


text:
    Negro Quamini against William Leddel, Esquire.
   c'n Habeas Corpus j~r Manurn.~jJion~

T being alledged on the Part of the faid Negro Qua~ 1 mini, that fe~eral Years ago he belonged to I)r. Sa~ inuel Tuthill, of Morris County, from whom he ~s as pur~ chafed by Captain AuguiHnc Bryl es of the fame County that the laid Captain Buies, divers ftwws iu bis Lii< - time promifed the ibid Legro Ouaming tint if he would be honeft, faithful, and induftricus, henmer ílioíM •' me any other Matter, but ihould be free at lib the tt.m Captain Bayles’s deceafe ; that the laid Capeón Raj Ls o a his Death-Bed, confidering that his Wi‘<’ woo’d be . c-y deftitute of Help, directed that the faid Negro iumi..i Ihould continue in her Service during her Wi.’o-» rood, and that then lie ihould be free ; that ¡h. laid €a;: ¡ni Bayles died in the "fear i 781, or 1782, and that aboj'-Two Years ago, Keziali Bayles his Widow intermarried with one Thomas Faircloth*

The Court having heard the Tcftimony for cfuhllih-ing the feveral Facts aforefakl, and hating duly concurred the lame, do order, on Motion of Mr. \\ llliam De Hart, that the faid Negro Ouamiiii be difchsrged, and let at Liberty from the laid William LeJdel, Eitjuirc.


text:
      May Term 1787.
    The State against Jacob Phillips.
   On Habeas Corpus of Negro Obadiah Gale.

THE Court having heard the Evidence and Argument of Counfel in this Caufe, do order that the ibid Jacob Phillips enter into Recognizance in the Sum of Ore Hundred Pounds, conditioned, that the faid Jacob Phillips on the Twenty-fixth Day of June next, liberate and difeharge from his Service the faid Obadiah Gale, and the Court do further adjudge and order, that on the Y v crty-fixth Day of June next, the laid Obadiah C ale frail be fet at Liberty, and go thereof free without Lb; , and that the faid Obediah Gale be in Cuiiody of the bheriL of Hunterdon till the faid Twenty-fixth- Day of June next, imlei’s the Recognizance is entered into bv the laid Jacob Phillips before one of the Juftkes of the Supreme Court, on Motion of Mr. Elias Boudinot.


text:
      September Term, 1787.
    The State against John B. Oliver and his Wife.

      On Habeas Corpus of Negro Kate.
    Note, The Counfelfor the Defendants in this Cafe, contended that they ought not to be compelled to anfwer the Allegation of Abufe, becaufe, as ike Habeas Corpus, was in common form to bring the Body, and no Caufe in particular allsdged, they could not be prefumed to come prepared to anfwer any thing but the illegal Detainer of the Negro as a Slave, and infiftcd that they ought not to be compelled to an-fwer this until a fu[fui, nt Proje cut or fiould he indorfed on. the Habeas Corpus, and Security given for the Cojis .• All, this the Com t ver ruled. The Counfcl for the Defendants undertook that the IS ¾, o fboifd not be ill-treated, and the difpute was afterwards fettled and the Court heard nothing further of th> Affair>
    Tire Attorney General and Eliiha Boudinot for State-
    Elias Boudinot and Aaron Ogden for Defendants.
   THE Court after hearing the Arguments of Counfel, are of Opinion, that the faid John B. Oliver enter into Recognizance in Five Hundred Pounds, conditioned that he do not fend or fuffer to be fent, the Negro Kate mentioned in the laid Habeas Corpus, out of this State, till the Court {hall take further Order therein at the next Term. Recognizance entered into accordingly by the laid John B. Oliver.


text:
      September Term, 1788.
    The State against Daniel Taylor, Junior.
   On Habeas Corpus for the hrinfmg r • a 1 7< grr> Man named Harry.

^ | "'HE Habeas Corpus being returned, the Court rro-JL ceeded to ccmiider the lame, and Con ¡el boüt it; favor of the Negro, and on behalf of the- llr-.l Daniel Taylor, Jun. being heard ; It is ord. red, that rite fat) Negro Man be difeharged from being a Slave, and that he ferve the faid Daniel Tav'er, Jun. Id-, Maher as a Servant for the Space of Six h cars, from the Firit Day of September inflant, and that from thenceforward he be entirely difeharged and free from Servitude.


text:
      April Term, 1789.
    The State against David Lyon.

      On Habeas Corpus of Ntgro Margaret Reap, claiming her £ / v edom*

   Upon the hearing before the Court, it appeared, that riwh i., My. hew, of MuiTuchufetts, by Deed . f if , dated t m frit Day of 'larch, 1750, did give a ;erta>ii Negro (⅛; called Flora, unto his Daughter, Lucy' Lithe, i a the Wire of Little — That the faid Lucy Little alicrwards being a Widow, and having One Son called William Little, intermarried in Maiiachufetts with a Dr- Jofeph Eaton, who came from thence with his 'Wife to Sluev.lberry in Nevj-Jerfey, and at the fame Time brought the faid Negro Flora with them — That on the 3 ill Day of stugufi, 1752, the faid Dr. Eaton fold the faid Negro Flora with a Child lire then had called Rofe, unto one John Worthley — That lite i'. ■ j. on Worthkyby Till of Sale, dated ",7 th SepU.nlh r, <*;sk fold the iaid Negro Flora to one John William - i F'* John Williams the 8th cfdibr, x? -¡g, fold ihe laid agro Flora to the e"or 1 laid Dr. for the Sum of ' Nty-Pounds Yore-Money — That the kid Dr. Ea'oi m . mb . of Twenty tears ago, and about Five D vs mnr <>•> ■ Jacob Dennis had purchafed the afórela" . 1‘lcg.o Yr’ Rofe, Daughter of the fakl Flora, of the fr-i Jo’>. Worthley, he the laid Dr. Eaton informed the faid Jacoo DennL, he was collecting thofe Negroes for William k ttie (his Son-in-Law) — that they ihould return to him ■ .1 as they belonged to Mm ; and at that Time and oi-1 t afterwards declared that he was principled againii; Yavery, and that he never intended the faid Flora Ihould i .long to his Eftate, nor ihould any of Ms Children be L wh ed by having her as their Property — It alfo ap-pxa -cd that the laid Lucy Eaton furvived her faid Huí. band, the faid Dr. Eaton — That Ihortlv after the Death of the faid Dr. Eaton (to wit, about Seventeen Years ago) one Thomas White applied to the Í id T 1 < F to to purcliale and did purchafe at pri\ ate bale, ^ f h S, ning Wheel, which lite then laid ihe had not . < n life for, as ihe had given Flora free ⅜\ ho uied to 1 1 n the Did Wheel- — That fince that "1 > ne the lamí F 1 paifed for, and been efteemed a ficaWii’ s i 1 coniiderabte Time worked about n tl e . c > i ¡ c < the laid Widow Eaton, and in the lionit of il c 1 m 1 clow, and for the Wife of John Eaton tne eideit Son or the laid Dr. Eaton, and always received her Wages a; well from the laid John Eaton’s Wife, as the Neigh-bours ; and the laid Widow Eaton herí elf promifed to compenfate her therefor — .And it further appeared tire. whilil the laid Flora worked about for herfelf as afore-faid, fhe intermarried with a certain Jofeph Reap, a free Negro, with whom the laid Flora has ever fince lived unrnoleited and as a free Woman, and ftill continues lb to live — That after the marriage of the faid Flora with the faid Jofeph Reap, fhe had Two Children called Lydia, and Margaret (the prefent Claimant), that thefe Children lived with their faid Father and Mother, tv ho brought them up by their own Induftry without any Ex-pence or Trouble to any other Perfon whatfoever, until Lift Fall, when they were taken away from their faid Parents without their Confent — That lince the laid taking, it appears by a certain Inftrument of Writing, bearing date the 8th Day of January, 17 89, executed under the Hand and Seal of the aforeiaid William Little, (the Son-in-Law of the faid Dr. Eaton, and for whom the Rid Dr. Eaton declared as aforeiaid, he was colleftiog the Negroes) — That the faid William Little hath manumitted and let at Liberty the fa hi Flora and her laid Two Children, Lydia and Margaret; whereupon

Bloomfield, Attorney General, and R. Stockton for the State. — —

fl'L Williamfon, and Aaron Ogden for Defendant.

The Court having confidered this ft ate of Facts, and the arguments of Counfel on both Sides thereupon, are of Opinion, That, permitting the laid Negro W oman Flora to remain at Liberty for fo long a l ime, and to work for herfelf, and having intermarried with the faid Joieph Reap a free Man, with whom Ihe has ever fince lived as a free Woman, is fitch Evidence of Freedom, both of the faid Negro Woman Flora, and confequently of her Children, as to entitle the faid Negro Margaret Reap to her Difcharge ; and the Court do therefore accordingly order the laid Negro Margaret Reap to be difcharged and fet at Liberty from the laid David Lyon ; on Motion of the Attorney General.


text:
    The State against John Leighton.

      On Habeas Corpus of Negro Lydia Reap, returnable the fir Jl Day of this Term.
   THE Court order an Attachment againfl the faid John Leighton, for contempt in not returning the laid Writ of Habeas Corpus, agreeably to the Command thereof, and for divers Expreffions made ufe of by him refleffing on the Authority of this Court and its procefs, on Motion of Mr. Attorney-General.

The State agmnft Lewis Prall and Robert Ross Admmjtrators of Isaac Prall, deceafed.

On Habeas Corpus of Negro Thomas claiming his Freedom. [Habeas Corpus returned and filed»]

RETURN,

1E have the Negr the Day and Place as by the faid Vrit w o in the above Writ named, a t are that we as Adrniniftra- " w commanded, and we do certify, tors of all and Angular the Goods and Chattels, Rights and Credits which were of Ifaac Prall, deceafed, took Poffefiion of faid Negro as part of the perfonal Property of the faid Ifaac Prall, and that there is no other Caufe of detaining him.

LEWIS PRALL, 7 . ,■ ROBERT ROSS, Jlw. 5 Admuilftrators'

Upon the hearing in this Caufe, it appeared to the Court that the faid Negro Thomas belonged to the faid Ifaac Prall, deceafed — That the Inteftate, about Three Years before his Death, and frequently afterwards, declared that Tom fliould never have another Mailer — - That he had been a faithful Servant to him — That they had been born under one Roof, that they had received Suite nance from one Breaft, and had broke up the Ground, and always lived together ; and continued to fhew great Affeftion • arid Regard for the Negro until his laft Sickriefs, and during that Sicknefs whilit he had his Sudes — That in his laft Hinds, oh the Friday before he d ed, he requefted a Perfon might be fent for to make his Wdl, at which lime his Sifter being prefent, fhe alked him what he intended to do with his Negroes, lie replied they fhould all be fold but Tom, and he fhould be free; which Declaration,he alio made the fame Day to feveral others, with this, further, that Tom fliould not ferve any other Matter — -The Perfon fent for to write his Will, did not come Till the next Day, when. the Inteftate was fo deranged in his Mind as to be incapable of making his Will, and continued fo until he died, which was on the Wednefday following ; that the laid Inteftate, after he was in fome meafure tier winged, continued to ftiew ftrong and evident Marks of AiFe&iou for the laid Negro, and of the Continuance of his Deiign and Intention to make him free; It alfo appeared to the Court that the faid Negro had always before the Death of the Inteftate, and till that Event took place, been much attached to his Mailer, had ihewn ⅜ great Affection for him, and had behaved hjmfeif well and faithfully.

Attorney-General, and Elifha Boudinot, for the Spate*.

Freelinghuyfen and Aaron Ogden, for Defendants»

The Court having confidered of the whole Cafe, and the Arguments of Cottnfel for and again!! the Manumilli-on of the Negro, arc unanimously of Opinion, That the frequent and fill Declarations of the Inteftate, amounted to more than a bare Intention of doing fomething in fu» ture ; that even if thefe Declarations were taken in the Senfe of a Promife to do fomething in future, the good Behaviour of the Negro which'was admitted on all Hands, the evident Continuation of the Affection of the Matter as long as he had his Senfes, and even when in forne Meafure deprived of them, afforded a ftrong. Ground of Prefumption of a Contract between the Negro and Mailer for his Freedom, conditionally on his behaving well, which having performed on his Part, the Negro was entitled to Ms Liberty, and that the Performance of the Condition on the Part of the Mailer and his Aeprefentatives, might be effeiled on this Habeas Corpus, do therefore adjudge, That the laid Negro Tom being entitled to his Freedom, be dilcharged from the Cuf-io dy of the faid Adminiftratots, and all the Reprefenta-tives of the faid Ifaac Prall, deceafed. On the Motion of Mr- Bloomfield, Attorney-General.


text:
      May Term, 1790.
    The State against Tobias Hendrickson.
   Ck Habeas Corpus of Negro Jack claiming bis Freedom,

THE Court having coniklered this Cafe under all its Circumftances, and it appearing that John Coward the former Matter, under whom Tobias Hendrickfon claims Title to the Negro, antecedent to the Year 1785, a&ually entered into an Agreement with Jack for his Freedom, the Terms of which have been fully complied with ; The Court are therefore of Opinion, and do order, the faid Negro Jack to be liberated from the Cultody of the faid Tobias Hendrickfon — Rut as John Coward the: former Matter is not before the Court, and of Courfe not heard, and his Intereft may be materially concerned, this Judgment for the Liberation of the faid Jack is not to affect any prefent or future Claim of the faid John Coward.


text:
      September Term, 1790.
    The State against John Ware.
   @n Habeas Corpus of Negro Jethro (Son of Charity Briggsj claiming his Freedom.

tT appearing to the Court that the faid Negro Jethro 1 was born on the eighth Day of September, 1768, in the County of Cape-May m this State,; that his Mother Charity Briggs a (Mulatto Woman) was free at the Time of his Birth — I hat the faid Charity was by Indenture bound by the Juft ices and Overfeers of the Poor of the Lov, er Precinct of Cape-May to one Nathaniel Fatter, in order to bear the Expenses of her having had the Small-Pox — That in the laid Year of 1768, the laid Charity was purchafed by a certain John Connel, fhe then having the faid Jethro an Infant at her Breaft— That afterwards the lime of Service of the laid Charity was fold by Connel to Captain Jonathan Jenkins, and that Ihe the faid Charity took her laid Son with her — • That the faid Jethro her Son, was brought up by Jenkins until he was fit for Bufinefs, and then was fold unto Chriftopher Learning of the laid County of Cape-May, who kept the laid Jethro a nnrtiber of Years, and within Two Years laft part fold, the faid Jethro unto John Ware of, Cumberland, the Defendant now in'Court, for the Term of Twelve Years and Eight Months, and by Bill of Sale engaged to warrant the Service of the faid Negro Jethro for the laid Term.

And the Court having taken the faid Cafe into Confi-deratíon, are unammoufly of Opinion, ft hat the faid Jethro being the Son of a free Woman, and of the Age of Twenty-one Years, is now entitled to his Freedom, and do therefore adjudge, that the laid Negro Jethro (other-wife called Jethro Briggs) be difeharged from the Culio-dy of the faid John Ware, on the Motion ol jvfepb Bloomfield, Attorney General.