author: Grey, V. C.

text:
    Caroline M. Weaver v. The Atlantic Roofing Company et al.
    [Filed July 20th, 1898.]
    I. Where a contractor stipulates to alter an old building and erect new work, by a contract in writing, agreeing “to make mah alterations and erect such new work as shown on plans and described in specifications, and finish the same in good, substantial and workmanlike manner, on lot situated on the north side of Pacific avenue, designated 703, Atlantic City, New Jersey, agreeable to the plans and specifications hereto annexed and forming part of this agreement,” the plans and specifications are necessary to disclose and define what alterations are to be made, and what new work to be constructed, and these plans and specifications must be filed with the contract as prescribed by section 2 (now section 37) of the Mechanics’ Lien act, in order to exclude workmen and materialmen from the privilege of filing a lien under that act.
    2. In such a case if the plans and specifications be not filed with the contract, and the workmen and materialmen be not thus prevented from filing liens, no effectual notice can be given by them to the owner under the provisions of section 3 (now section 38) of the act, to retain from the contract price and pay to them the money due them from the contractor.
    3. It is not necessary to an effectual equitable assignment that immediate payment of the money assigned should be ordered to be made to the assignee. It is necessary that the assignor should, by the assignment, strip himself of his interest in the fund or in some part thereof. The assignment may be absolute or may be subject to prior equities.

      4. The provisions of the fifth section of the supplement to the Mechanics’ Lien act, approved March 14th, 1895 (Gen. Stat. p. 8074), securing to workmen and materialmen who give notice, &c., a preference out of the contract price, have no application unless the contract be duly filed as provided in the act.
    On bill, answer and stated and agreed facts.
    The complainant files her bill of complaint in the nature of an interpleader, seeking to be protected from the conflicting claims of the defendants upon $745.78, which has been deposited in this court as the money remaining due under the terms of a contract made between the complainant and one Ellwood Thompson for the alteration of an old building and the erection of a new part of a building at Atlantic City. The contract is dated February 20th, 1896, and thereby the contractor, Thompson, agrees

      “to make such alterations and erect such new work as shown on the plans and described in specifications and finish the same in good, substantial and workmanlike manner, on lot situated on the north side of Pacific avenue, designated as 703, Atlantic City, New Jersey, agreeable to the plans and specifications hereto annexed and forming a part of this agreement.”
    On June 4th, 1896, the contract was filed. The specifications mentioned in the contract were not filed at any time. There was no other definition of the extent of the work to be done or the materials to be furnished under the contract than is indicated by the, above-quoted clause. The defendants are the workmen and materialmen who furnished work and materials for the alterations and construction of the building, and who were not paid by the contractor, some of whom claim to have given notices under the third section (now the thirty-eighth) of the Mechanics’ Lien act (Gen. Stat. p. 2073) and others of whom make claims upon the funds remaining in the hands of the owner by reason of orders for payment given by the contractor upon the owner. The complainant prays that the claimants may be restrained from proceeding at law against her, that she may pay the balance of the money in her hands into this court, and that the defendants may interplead and adjust the matters in controversy as between themselves.
    The defendants filed answers substantially admitting the facts set forth in the complainant’s bill, but disputing, as between themselves, the priority of their several claims upon the fund. A decree has been made that the complainant is entitled to the relief prayed for and that the defendants shall interplead and adjust their claims upon the fund as between themselves. An agreed statement of facts entered into by all the defendants has been filed, and the cause has been argued upon the facts and the disputing answers of the defendants, taken under the modern practice to be interpleadings.

      Mr. Carlton Godfrey, for the Atlantic Lumber Company.

      Messrs. August Stephany & Son, for V. B. Griffin & Son.

      Mr. Charles C. Babcock, for Showell & Clark, Edward S. Lee, J. J. Finklepaugh, Samuel E. Kears and David Pettit & Company.

      Mr. Clarence L. Cole, for Edward Moss, the Atlantic Roofing Company and Charles L. Cranmer.
   Grey, V. C.

It has been settled in this state that to invest a claimant, for work done or materials furnished in constructing a building, with the right, under the third section of the Mechanics’ Lien act, to give notice to the owner demanding payment of the debt due the claimant from the contractor, the building must have been erected by contract in writing, filed in the clerk’s office, under section 2 (now section 37 of that act), in such manner that the claimant is thereby deprived of his right to file a mechanics’ lien. In case there is no such contract and filing his remedy is by proceeding by way of lien, under the first section of the act. Summerman v. Knowles, 4 Vr. 205.

The second section of the act (as now amended, Gen. Stat. p. 2073 § 37) provided that when the building shall be erected in whole or in part by contract in writing, the building and the land whereon it stands shall be liable to the contractor alone for work done or materials furnished in pursuance of such contract, provided that the contract or duplicate thereof with the specifications accompanying the same be filed, &c. The requirement that the contract shall be filed is to inform laborers and materialmen to what extent the building is exempt from liens and how far they must look to the contractor alone for their pay. When, by the terms of the contract filed, all the work is agreed to be done and all the materials are agreed to be furnished by the contractor, the contract sufficiently advises workmen and materialmen that all work and material is to be furnished by the contractor. But where the contract is so expressed that only such new work and such alterations of old work are to be done under the contract, as may be shown by the specifications, to which reference is made, as forming part of the contract, then the specifications as well as the contract must be filed for the purpose of giving notice to the workmen and materialmen in order that they may be advised how far they are excluded from their right to a lien and to what extent they must rely upon the contractor alone for payment. Pimlott v. Hall, 26 Vr. 193; La Foucherie v. Knutzen, 29 Vr. 236, and cases there cited. The test whether the specifications referred to in the contract must be filed with it, in order to free the building from liability to lien, is expressed with precision in the opinion of Chancellor McGill in Freeman v. Sandknop, 8 Dick. Ch. Rep. 245. The learned chancellor there states the question to be, “ Is it necessary to examine the specifications referred to in the contract to ascertain how much of the work and materials in the erection of the building it covers? If it is necessary, the contract was not properly filed, and the claimants have their liens, and cannot be obliged to look to the fund in court.”

Applying this clearly-stated rule to the contract now under consideration, it does not provide that the contractor shall do all the work and furnish all the materials named in the plans and specifications. The terms of the contract show that the work intended to be done, under the agreement, included both the making of alterations of a building and the construction of new work, but the contract did not express what alterations were intended to be made, nor what new work was to be erected, save by a reference to the plans and specifications which it stated were thereunto annexed. Eor all information as to the work to be done or materials to be furnished, the parties interested are referred to the specifications. If a workman had been employed by the contractor to work on the owner’s building, and he examined the contract to ascertain whether the particular work upon which he was engaged was within or without the contract, he would have been unable to tell whether the alterations or new work on which he did labor were included in the contract or not, unless he had the plans and specifications also, because it was only such work as these called for that the contract required to be done. In the contract under consideration it is not in terms declared that the contractor shall do work on a portion of the building or furnish a portion of the materials, yet it is plain that thé work in hand was not the construction of an entire house, or a single thing which might be included in a general agreement to complete it, and thereby make needless an inspection of the plan and specifications in order to know the scope of the contract. The phrasing of the contract shows that alterations of an old structure and construction of new work were within the contemplation of the parties, and that the plans and specifications were referred to as defining what part was to be altered, and how, and what part newly constructed. It was therefore impossible for anyone to know, without inspecting the plans and specifications, what work the contractor agreed to do and what materials he agreed to furnish. Under these circumstances the filing of the contract without the plans and specifications did not relieve the land from liability to lien, and workmen and materialmen have no right to resort to the remedies provided by the third section (now the thirty-eighth section) of the Lien act.

This condition renders ineffectual all the notices claimed to have been given by workmen and materialmen to the owner to retain and pay from the contract price, by virtue of the provisions of the latter section. All who were in this class of creditors of the contractor had their remedy by filing a lien claim under the first section and the other provisions of the act, from which they were not precluded by the filing of the contract alone. Summerman v. Knowles, ubi supra.

The effect of this situation was that the contract price was left in the hands of the owner open to the disposition of the contractor by giving orders upon it in the nature of equitable assignments.

In the case of Slingerland v. Binns the court of appeals interpreted the fifth section of the supplement to the Meehan ics’ Lien law approved March 14th, 1895. Gen. Stat. p. 2074. That court declared that workmen and materialmen who served notices upon the owner secured under the terms of that act, a right to payment from any moneys thereafter growing due upon the contract, in preference to the right of persons to whom the contractor had, by orders given, assigned such money before the notices were served. But the terms of the statute are applicable only to those cases where there is a written contract which'has been duly filed, whereby the land has been freed from liens and workmen and materialmen are relegated to the moneys due on the contract. When it appears, as in this case, that the contract is inefficient (by reason of the non-filing therewith of the plans and specifications) to cut off claimants from their right to a lien, the fifth section of the supplement of 1895 and the interpretation of it in the case last cited, have no application.

In ascertaining the order of priority of those who claim equitable assignments of the fund in the hands of the owner, the defendants V. B. Griffin & Son assert their right under a notice of which the following is a copy.

“Atlantic City, N. J., 5, 15,1896.
“Mrs. G. M. Weaver,-Philadelphia,:
“Dear Madam — You are hereby authorized to hold sufficient funds on my contract with you for extension to your cottage No. 703 Pacific avenue, in favor of Y. B. Griffin and Son, No. 1518 Atlantic avenue, as may be sufficient to cover their bill for heating and plumbing, probably amounting to $200.00, at which time, with the approval of your contractor, a release of lien will be signed by V. B. Griffin and Son.
“ (Signed) E. Thompson, Jr.”

The above notice and authorization was served upon the complainant, Mrs. Weaver, on or about the 15th day of May, 1896.

No particular form of words is necessary to constitute an equitable assignment. Bower v. Hadden Blue Stone Co., 3 Stew. Eq. 171, 340. Any writing or act which indicates the intent of the assignor to make an appropriation of the fund or part of it will in equity be enforced as an assignment. Harlem Bank v. Bayonne, 3 Dick. Ch. Rep. 253; Lanigan v. Bradley & Currier Co., 5 Dick. Ch. Rep. 205, and cases cited.

The writing above quoted does not, in terms, transfer to G. & Son the immediate absolute ownership of the sum necessary to cover their bill. It directs Mrs. Weaver, who had the fund, to hold in favor of G. & Son a sufficient portion of it to cover their bill. This was an appropriation by Thompson, who owned the money, or a part of it, for the benefit of G. & Son, and Mrs. W. became, by this appointment, a trustee, to retain for G. & Son enough of the fund to pay their bill. So far as Thompson was concerned, he had, by giving this order, finally disposed of his interest in so much of the fund as was necessary to meet G. & Son’s bill, and he could exercise no further control over this portion. The essential requisite of such an assignment is not the vesting of a right to immediate payment in the party in whose favor it is given, for it may be subject to prior equities (Harlem Bank v. Bayonne, 3 Dick. Ch. Rep. 205), but that the assignor should presently strip himself of his interest in the fund or in some part thereof. This he may do by directing payment to the party to be benefited, or to some one else for his use. It may be either an absolute or a conditional order, by a direction for immediate payment, or for a retention to secure a future payment. When made, the effect of the transfer by the assignor must be such that no power remains with him to revoke or control the disposition made. In the matter in hand it was the clear intention of Thomspon to deprive himself of further control over so much of the fund as was necessary to repay G. & Son’s bill, and he did this by directing Mrs. W. to retain that much in favor of G. & Son. The object of this method of disposition is indicated by the reference to a release of liens to be given by G. & Son for the benefit of both Thompson, the builder, and Mrs. W., the owner. This direction was served on Mrs. W. on May 15th, 1896, and secured the holding for Griffin & Son of a sum “ sufficient to cover their bill for heating and plumbing,” probably amounting to $200. In actual fact the sum due them amounts to $331.34, as is admitted by the stipulation on file.

The next, order to pay was partly verbal and partly written, and was given June 1st, 1896, by Thompson, the contractor, to Mrs. Weaver, to pay the defendant Edward Moss $48.08 by presenting to her on that day Moss’ bill, marked by Thompson approved 6/1/96,” but without signing it. Neither a written direction to pay nor signature to the approval of the bill was necessary. It was Thompson’s money, and his presentation of Moss’ bill to Mrs. Weaver and direction to her to pay it, was a transfer of that much of the fund. Lanigan v. Bradley, 5 Dick. Ch. Rep. 205. This disposed of $48.08 to. Moss.

A large number of notices under the third section (now thirty-eighth) of the Mechanics’ Lien act were served at different dates between June 6th, 1896, and August 17th 1896, upon theassumption that the filing of the contract without the specifications effectually prevented the filing of liens by anyone but the contractor. The error of this assumption in this case has been above shown and all these notices were ineffectual to dispose of the fund; These notices are also criticised because they were served on Mr. Hoffman, an attorney then acting for Mrs. Weaver. The agreement does not state that he was acting for her in the particular transaction in question, and it is also insisted that the notices were of no force unless served personally on Mrs. Weaver. I consider neither of these points, as the notices must fail because as above shown the contract did not deprive these parties of their liens.

On October 1st, 1896, the defendants Showed & Clark obtained from Thompson, and served on Mrs. Weaver, a written and signed order for the payment of $113. This transferred $113 more.

On October 23d, 1896, the defendants V. B. Griffin & Son served on Mrs. Weaver a more formal assignment to them by Thompson for their bill of $331.34 out of the fund, with an authorization to Mrs. Weaver to pay that sum to G. & Son. This was an authorization to Mrs. Weaver actually to pay to G. & Son the sum of $331.34 for the amount of their bill, and was delivered to G. & Son and served on Mrs. Weaver at such early date that even if the first direction in favor of G. & Son were inoperative as an equitable assignment, there remained enough of the fund to pay G. & Son’s bill, and this latter assignment certainly transferred to them an amount sufficient to pay the whole of the bill.

The defendant the Atlantic Roofing Company afterwards, but on the same day, October 23d, 1896, received from Thompson, and served a like assignment on Mrs. Weaver for the sum of $180.25.

On October 28th, 1896, the defendant Charles A. Cranmer received and served a like assignment for $300. If there be enough of the fund to pay this defendant anything, it is certain that this latter assignment ■ more than exhausted the fund, so that the account stands thus :

Fund deposited in this court ,.$74578
$......
Expenses of this suit deducted:
Due, first, to defendants V. B. Griffin & Son...............$331 34
Due, second, to defendant Edward Moss...................... 48 08
Due, third, to defendants Showell & Clark................... 113 00
Due, fourth, to defendants Atlantic Roofing Company.... 180 25
Due, fifth, to defendant Charles Cranmer the residue, not exceeding........................................................... 300 00
$....

There are one or two more claims by way of equitable assignment which fail because the fund is insufficient to pay them.

I will advise a decree in accordance with the above opinion.


source: Caselaw Access Project

license: Public Domain

text:
    George B. Grier v. Franklin Flitcraft.
    [Decided September 27th, 1898.
    Filed September 27th, 1898.]
    1. Where one who signs a note as principal is in fact a surety, and claims to be released because the holder has given to the real principal further time for payment, his remedy is by bill to restrain the collection of the note. He cannot in such a case set up his suretyship as a defence in an action at law on the note.
    2. Mere delay in enforcing a note without fraudulent connivance between the maker and payee does not release the surety. There must be a binding agreement on a new consideration for an extension.
    3. A bill for injunction to restrain enforcement of a note against a surety, ' because of an extension to the principal, should state facts from which the court can determine whether the alleged extension was a violation of the surety’s rights. Hence an averment which fails to give the time, circumstances and consideration of the extension agreement, is insufficient.
    4. Nor will a preliminary injunction be allowed where the complainant’s proofs denied by defendant state the conclusions of the witnesses that there had been an extension, without setting forth the circumstances from which the fact can be adjudged.

      On bill and affidavits. Order to show cause and answering affidavits.

      Mr. J. Boyd Avis, for the complainant.

      Mr. Enoch 8. Fogg, for the defendant.
   Grey, V. C.

This bill is filed by the complainant, Grier, who, on the face of a promissory note, appears to be a joint maker with one Avis. The complainant alleges that he is in fact only a surety; that the defendant, Flitcraft, the promisee and holder of the note, knew this, and with this knowledge gave the complainant no notice of non-payment within a reasonable time, and without the consent of the complainant has extended to Avis, the principal debtor, the time of payment on the note, and. that the effect of this omission and action on the part of the defendant has been to operate as an equitable discharge of the complainant from his suretyship. The defendant holder of the note having brought suit against the complainant, the latter by this bill now asks an injunction restraining the further prosecution of that suit, and has obtained the order to show cause why such an injunction should not issue, &c., which he now seeks to have made absolute.

It must be considered as settled in this state that a creditor holding a contract of two or more persons, who have on its face stipulated as principals, will not in a court of law be held bound to treat as sureties any of the defendants who have contracted as principals, even if they are in fact sureties and the creditor knows it. If such a contractor is in truth a surety, and because of that relation and the creditor’s knowledge of it, and his action having that knowledge, the surety claims any remedy, it must be held to be merely an equity, not cognizable at law, and the surety’s relief must be in the court of chancery. Anthony v. Fritts, 16 Vr. 1; Taylor v. Shute, 32 Vr. 256. The complainant is, therefore, rightfully in this court for the remedy he seeks.

The complainant, in support of his claim to an injunction, offers his own affidavit and that of his co-promisor, Avis, and relies on these to prove his suretyship in the contract, and the defendant’s knowledge of it, and the extension of the time of payment of the note.

The principle under which a surety is held to be discharged if the time of payment named in the contract be extended, is elementary. The surety with his principal has entered into a contract with the creditor for the payment of money. The time of payment is an essential incident of such contract. If the creditor surrenders or changes the contract, or postpones the time of payment without the consent of the surety, and thus prevents the latter from paying the debt at the time named in his contract and from suing the principal for reimbursement, the creditor has so violated the terms of the contract that he has relieved the surety from further liability. Firemen’s Insurance Co. v. Wilkinson, 8 Stew. Eq. 175.

But the thing done by the creditor must by surrender of the contract itself, or by its alteration under a binding agreement for a new consideration, have effectually changed the contract in a manner to be obligatory upon the creditor. Mere delay in enforcing the contract, without fraudulent connivance between the principal and the creditor, will not discharge the surety. He has undertaken to pay the debt and is bound to do so. When it has come to be due he may at any time enforce its payment by satisfying it in the hands of the creditor and suing the principal for reimbursement. The surety’s remedy is thus in his own hands — his omission to enforce it is his own fault.

It is well settled in this state that the mere delay of the creditor to collect a due debt will not discharge the surety. Newark v. Stout, 23 Vr. 47. Not even when the surety has actually requested the collection of the debt. Pintard v. Davis, 1 Zab. 634.

In the case under consideration the affidavits submitted by the complainant make no disclosure of the terms of any binding agreement entered into by the defendant which extend the time of payment of the note in question. They simply state that the defendant did extend the time of payment, and give no specification of the time, place, consideration or other circumstances of the alleged new agreement which might enable the court to determine whether there was any such binding contract of extension as should relieve a surety.

It is not enough that the complainant’s witnesses are willing to depose that there has been an extension of the time of payment. The facts must be set forth upon which the court may decide whether the supposed extension was such a violation of the contract as exonerated the surety. It may be true, as stated, that the defendant, Flitcraft, did extend the time of payment in the sense that he omitted to enforce it when it came to be due, but, as above shown, this would give to the surety no right to relief. He could still have taken up the note at any time and sued his principal.

The complainant’s affidavits are in themselves insufficient to sustain his effort to secure a restraint of the suit at law on the ground of the alleged extension of the time of the payment of the note.

This conclusion is justified by an examination of the responsive affidavit of the defendant, Flitcraft. He denies any agreement with the complainant as’ to whether he was or was not surety on the note, and testified that he accepted the note in question as it is expressed, upon the responsibility of both parties as joint makers. He denies making any agreement of any kind whereby the time of payment of the note was in any manner extended, and states that he has simply forborne to enforce payment, not desiring to subject either of the makers to costs unless absolutely necessary.

He denies that he has not notified the complainant of failure to pay the note, and relates in detail several personal notifications to the complainant of the non-payment of the note, at one of which he states that the complainant requested him to keep the interest collected but not to press the other maker for the principal, and he further states that at none of these several interviews with the complainant, which happened at periods several years apart, did the complainant intimate that he would not pay the note or that he considered himself released from such payment, and further testified that the complainant never requested that any suit be brought on the note against Avis, the other maker, alleged to be the sole principal.

The defendant’s proof meets every ground of equitable relief set up in the bill. It is responsive to the complainant’s allegations and proof and deals with matters within the personal knowledge of the testifying defendant touching his own conduct. Its effect is fully to meet and contradict the proof submitted by the complainant and to leave his bill unsupported by any evidence sufficient to justify the granting of a preliminary injunction. Winslow v. Hudson, 6 C. E. Gr. 173.

The only question remaining to be considered is whether the case exhibited is one of those exceptions to the general rule which leads this court, in the exercise of a sound discretion, to restrain the defendant until final hearing, in order to prevent the doing of an injustice by the enforcement of payment from one who is in equity a surety discharged from liability by the act of the creditor. Fleischman v. Young, 1 Stock. 621.

The affidavit of the complainant as to the extension of time to the principal debtor refers to a transaction in which the affiant does not claim to have been himself an actor, nor does he indicate that he has any personal knowledge of it, and it is, therefore, of little weight as evidence. The affidavit of the co-promisor, Avis, makes no exhibition of the terms of the supposed agreement, nor any statement of its consideration, nor indeed of any of the incidents necessary to enable the court to determine whether there was in fact a binding contract extending the time of payment. All that is set out is the averment that there were at various times demands of payment, and that, on Avis’ request, extensions of time of payment were allowed by Flitcraft.

On the other hand, the defendant, who must have participated in the making of any such contract of extension and therefore knew whether any was made, expressly denies that any extension of the time of payment was ever agreed upon, and explains that he simply permitted the note to remain uncollected and gives a reason which accords with common usage in country districts, where a due promissory note is not unusual as an evidence of debt securing the payment of money loaned as an invesment to produce interest.

The allegation that reasonable notice of the non-payment of the note was not given, if it be any ground for complaint, is also fully met and denied, with responsive statements of several occasions when the non-payment of the note was brought to the attention of the complainant, who did not deny his continued obligation in any way.

The general and uncertain statements of the complainant’s equities, and the definite and conclusive denial of them by the defendant, lead me to believe that an injustice would be done if the case were treated as an exception to the rule that an injunction should not go when the complainant’s equities are satisfactorily denied. I think the defendant has shown that he is within both his legal and equitable rights in enforcing his remedy at law according to the express terms of the contract.

The order to show cause and the restraining order should be dismissed, with costs. I will advise a decree accordingly.


text:
    Reuben Loux v. Mary E. Loux.
    [Decided October 17th, 1898.
    Filed October 17th, 1898.]
    1. Having been offended by members of her husband’s family, the wife complained to him, and he refused to take her part to any extent. The next day she told him she was going back to her mother, and he told her to suit herself. — Held, insufficient to justify her in deserting her husband..
    2. To entitle the complainant to a divorce for desertion, the burden is upon him to show, by a preponderance of the evidence, that the desertion was willful, and obstinately continued for a period of two years.
    3. Being deserted without sufficient cause, the husband gave the wife two weeks’ time to return and then withdrew the offer. Within two years the wife, by several letters, offered to return, to some of which, the husband made no reply, and to others he answered, refusing her offer. The wife testified that-she went to see him and offered to return to him, and that he refused to receive her. The husband did not dispute her offer to return, but another witness testified to the wife’s statement that she would not live with him.— Held, that a continuous, obstinate desertion for a period of two years had not been shown.
    On bill, answer and proofs.

      Mr. Samuel M. Roberts, for the complainant.

      Mr. James JE. Hays, for the defendant.
   Grey, V. C.

This is a bill filed in March, 1898, by the complainant, for divorce against his wife upon the ground of desertion alleged to have taken place on March 13th, 1896. The parties were married in 1895, in Brooklyn, and did not immediately begin cohabitation, but after a week or so they associated together, and continued to live as husband and wife until the spring of 1896.

The circumstances of the alleged desertion took place in the house into which they had the day before moved, for their residence. The house being still in some confusion and dirty,.some members of the complainant’s family visiting it ma'de comments upon its condition, and on the action of the defendant in laying down a carpet, and used a name which she thought opprobrious, and which gave her great offence.

She made complaint to her husband of the remark of the member of his family, and the husband did not take her part as energetically as she thought he should, and upon that she became offended at her husband. As I recall the testimony she occupied the same room with him that night, but the next morning she began preparations for leaving, without, so far as I can gather, any other provocation or cause than that stated. She says that she mentioned to her husband the fact that she intended to go to her mother in Brooklyn, and that in response to her statement that she had such a purpose, he said “ suit yourself.” The husband, while not explicitly denying this statement, does say that he did not know that she intended to leave him. The wife that morning got together her personal belongings, tied them in bundles, and marked them for transportation to her mother’s house in Brooklyn, New York.

The husband had before this gone out to his work, and early in the morning, between nine and ten o’clock, the wife having made her arrangements to go to Brooklyn, during that period departed for that place by railroad train. Before she left she wrote a letter to her husband, in which she stated that she had gone, and sent -it to him, she says by mail. He says he found it in the house upon his return that night, and from his testimony I gather that his assertion is that this letter was the first information he had that his wife had gone.

At the time when the wife went away she was with child, which was born the following August (1896). The period when she left her husband was March 13th, 1896. Her husband was absent from the house at the time she left him. No person appears to have been present at the house at the time she left, unless possibly those whom she brought, there to cart away the goods, although that was done, I believe, after the husband returned. She, herself, engaged a carter to cart the goods which she had labeled to be sent to her mother.

The testimony is undisputed that the wife, upon the provocation' which she had received from some members of his family of the character named, and because of the husband’s refusal more cordially to resent it than he was willing to do, left the husband. In my view, this was a cause wholly insufficient to justify her in leaving her husband.

Up to this point there is no such substantial disagreement of the testimony of one side from the other, that there is any occasion to weigh it, or to inquire and ascertain which statements are more credible, but from this point on in the narration of the relation of these parties, there is a wide divergence of the statements. No witnesses for the complainant undertake in any way to define the character of the separation of the wife from the husband, except the testimony of a witness named Thompson, who testifies to her declaration that she would not return to him. All the rest of the testimony which undertakes to define the character of the desertion and the separation, is the testimony of the husband himself. The wife testifies that she has been both willing and desirous to return and that she asked his leave to do so, and that he advised her to stay where she was, with her mother.

Mere separation, it has been held in these cases many times, is not desertion. In order to constitute desertion such as gives a right to the relief sought in this case, there must be a purpose existing in the mind of the defendant to desert her husband — not for a temporary separation, but a purpose to abandon him, stay away from him and not associate herself with him. That purpose must be willful — that is, it must not be forced upon her by any action on his part, but it must be .the free action of her own mind and the result of her own wish. At the origin of the separation in this case when the wife first left the husband, there has been shown a purpose and willingness on her part to absent and separate herself from her husband. She put herself in the position of a wife who deserts her husband, for she left him of her own free will, without justifiable reason and with no indication of a purpose to return to him.

But the husband, in order to get the relief which he seeks in this court, must establish by the preponderance of the proof, not only that this desertion was willful at its beginning, but also that it was obstinate and continued during the period of two years. The burden is upon the husband who asks this relief to show this, and if the evidence is not sufficient to lead the court to that conclusion, he must fail of the relief which he seeks.

The testimony upon this point as to the relations between these parties during the period of separation is somewhat conflicting. The wife says, in the first place, that immediately upon the desertion she received a letter from the husband, in which he stated to her that the house would be kept open for her for one week. He says that he wrote such a letter, but in it he stated that the house would be open two weeks. There does not seem to be anything in the character of the letter, as described even by him, which was of the kind to indicate to the wife when she received it that if she returned her reception would be very cordial. Nevertheless, it was a notice to her that the home which she had abandoned would be open to her for two weeks on his statement. The husband admits that he advertised that he would not be responsible for any debts of the wife’s contracting, though there is no proof that she was in any way extravagant, or that she sought, by incurring debts even for necessaries, to charge him with her maintenance. The wife and her mother (who says she knows the handwriting of the complainant) both agree that another letter was received shortly after the first, in which it was stated that the home had been broken up, and that the household goods had either been removed or disposed of otherwise.

Various letters were written between these parties. Both parties showed that these letters have either been lost or destroyed before the controversy in this case arose, and to my satisfaction, without any indication that they were destroyed with any purpose of suppressing them as evidence which might be used in this case, and for this reason secondary proof has been allowed of the contents of those letters.

The wife and the mother both testify that a number of letters were written by the wife to her husband, to which no replies were made. So many as ten letters have been mentioned as having been written without drawing from him any reply.

These letters were described as having contained offers on the part of the wife to return to the husband, and asking him to take her back. The husband does not state with precision what these letters which he received, contained. He does not undertake to prove what they contained. He does not explain why it was that he made no reply to his wife’s letters, and the court is left, therefore, in ignorance as to what effect the wife’s letters produced on his mind, save only that it may be inferred as he made no answer to a very large number of them that he did not desire her to return to him. '

It must be borne in mind that it is necessary to show that the wife’s absence was willful, continuous and obstinate during the whole period of. two years. If during the period she. manifested to. him a disposition to resume their relations and put herself in such position that he ought to have undertaken with her the duties of husband and wife, then her desertion ceased to be obstinate and continuous, and if during that period, be it ever so short, if it were only one day, she came to him and showed him that she desired to resume the relations of a wife, the continuity of the period of desertion, which is absolutely essential, fails and consequently the relief, which- the husband seeks, which is dependent upon, that continuity, also fails. ■ ■ .

The wife testifies that she came to Camden to see the .husband some six or seven weeks after the separation, for the purpose of trying to induce him to take her back, as she -put it. She met him on the street, and during the interview she kissed him. This-is not, denied. She says that she asked him to take her back, and he told her that he would not take her back — that she was better off with her mother. The testimony of the mother as to the letters which were written by the husband to the wife, in Brooklyn, is that in these letters he advised her that she was better off to stay with her mother.. That is not denied.

The wife also states that at some period after the first visit she came to Camden from Brooklyn for the purpose of compelling the husband to support her. At that time she saw him, but whether or not she made definite application to him to take her back I cannot gather with precision from the testimony, although the tendency of her own statement of the case is that at every interview where she personally met him, she asked him to take her back.

After that she brought a suit before a justice of the peace to compel her husband to support her. There was but one suit, and the hearing of that was postponed. At one of those hearings the wife attended before the justice of the peace, and while she was there Mr. Thompson, the clerk of the justice or recorder, says that she made a statement that she did not want to and would not live with her husband. The recorder brought here and examined says he did not hear the statement, .but it is quite evident that it might have been made without his hearing it, as he. was not continuously with her during her presence there. It may be true that she so declared herself at that- time, but if, in the conversations with her husband she. asked him to take her back, and in her letters to him offered to return, all within the period of the two years of alleged desertion, it cannot be maintained that her desertion was obstinate and continued.

Shortly after the. issuing of the warrant for support the child was born, and the hearing having been continued until October, 1896, the parties appeared and the husband assented to a judgment or order that he should pay $1.50 per week for the support of the child. He paid this money as ordered by the court.

The question to be determined is whether or not the husband has, by preponderance of the proof, made a case of willful, obstinate and continued desertion during two years. In the original separation the wife was at fault, but the testimony of both the wife and her mother shows that in various letters the husband afterwards advised her, though absent from him, to stay in the place where she was. The testimony of the wife is that she met the husband and sought to establish affectionate relations with him — kissed him and asked him to take her back. This evidence is substantially undisputed. It is impossible, under these circumstances, to believe that this wife was actuated by a willful and obstinate purpose to desert her husband, which continued during the period of two years.

There is a line of eases expounding the duty of a husband when the separation is the act of the wife and not justifiable. See Cornish v. Cornish, 8 C. E. Gr. 209; Bowlby v. Bowlby, 10 C. E. Gr. 406; affirmed on appeal, 10 C. E. Gr. 570; Taylor v. Taylor, 1 Stew. Eq. 207; Driver v. Driver, 1 Stew. Eq. 393. These decisions, especially that of Bowlby v. Bowlby—which was affirmed by the court of errors upon the grounds stated by the vice-chancellor — declared it to be the husband’s duty in such cases to make such advances as a just man should in order to put an end to his wife’s desertion. In this case there is no proof that the husband even met the advances of the wife. I do not consider the notice sent her that the house would be open for two weeks for. her return to have been, either in substance or in spirit, such an invitation as a just man should have sent to his wife who had foolishly and hastily left him, and the weight of the proof shows he afterwards withdrew even.this offer.

In this case I have observed with pleasure that no suggestion has been made which is in any way derogatory to the moral character of the wife, nor has anything been asserted on the part of the wife which accuses the husband of ill treatment, or any lack of consideration for her, except that he did not, according to her view, support her with the energy that she thought she was entitled to receive from him, in opposition to what she thought was the obtrusive interference of his family.

I would be very glad if I could sáy anything to aid in bringing these young people to a willingness to resume their marital relations. I can see no reason for their continued separation. Their own future and that of their child certainly ought to lead them to live together. The function of the court must of course end in passing upon the testimony offered in support of the issues which are here raised.

As the bill must be dismissed, there is no occasion to consider the custody of the child. If the parties should resume their marital relations, the question of the maintenance and custody of the child will adjust itself. If they do not, then if no. amicable agreement be arranged, a new application to provide for the child may be made.

I will advise a decree dismissing the bill, with costs. No counsel fee having been heretofore allowed the solicitor of the defendant wife, an order will be advised for a reasonable fee.


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    Cumberland Bank v. Baker et al.
    [Filed November 14th, 1898.]
    In the absence of special equities, such aa the purchase of the progeny without notice, the progeny of mortgaged animals follows the mortgage, although it is not expressly so stipulated therein.
    On bill, <fee., and exception to receivers’ account and report,

      Mr. William A. Logue, for the complainant.

      Mr. Walter II. Baeon, for the receivers.
   Grey, V. C.

This suit is a foreclosure of a chattel mortgage held by the bank. The defendants were the mortgagor, Baker, and also Garrison and Minch, the holders, as partners, of a chattel mortgage which they agreed should be subsequent to the bank’s mortgage, and Garrison individually, in respect to another mortgage by him thereafter received from the mortgagor.

The priority of the complainant’s mortgage has been established in previous litigation in this ease. 12 Dick. Ch. Rep. 231. Among the chattels included in the mortgages was a cow, which, after the making of the complainant’s mortgage, dropped a calf. The receivers appointed under the complainant’s foreclosure sold this calf for $25, but have failed to charge themselves with its price in their account, upon the supposition that this increase was after-acquired property and not covered by the complainant’s mortgage. An exception is filed to their account for their omission to charge themselves with the price obtained for this calf.

The doctrine • seems to be well settled that the title to the progeny follows that of the dam. 2 Bl. Com. 390. Partus sequitur ventrem is the rule as to the brute creation under the common law, “though,” the learned commentator quaintly adds, “ for the most part in the human species, it disallows that maxim.” As to slaves, the title to children, born of slave mothers who were mortgaged, has been held to follow the mortgage (Fowler v. Merrill, 11 How. 396), and this where in the mortgage no special mention was made that the progeny, should be included. Fowler v. Merrill, supra. If the effect of the rule is to be disregarded, there must be some special equity shown, such as the purchase of the progeny without notice, &c.

As this case is presented by the proofs heretofore offered, and the additional facts stated and agreed upon in the exception, no equity is outstanding in any of the defendants to claim the proceeds of the sale of the progeny of the mortgaged cow. The calf was not existent when the chattel mortgages were made and recorded, but might at any time have come into existence. The complainant’s mortgage was a lien upon the calf’s dam, and when it was made, the defendants Garrison and Minch agreed it should be a precedent lien to their mortgage, and they took their own mortgage upon the said property, including the dam, subject to that agreement. They subsequently took another mortgage to secure the same debt upon the same property, under the belief that they could thus avoid their covenant that the complainant’s mortgage should be first.- This contention has been overruled in the previous de,cisión in'this case. Mr. Garrison, one of the defendants, also took a mortgage from the mortgagor, some months after the complainant’s had been made and recorded, upon the same property, but to secure a pre-existing debt.

The mortgage of the complainant was a good lien when made, upon the possible progeny of the dams mortgaged. This progeny, when the mortgage was made, had no separate existence, and was not-susceptible of immediate delivery and of actual and continued possession as a separate entity, as contemplated by the Chattel Mortgage act, but it had such a potential existence that the mortgagor might sell or mortgage it. It is doubtful if the provisions of the Chattel Mortgage act apply to a mortgage of such property. All of the defendants had actual notice of the complainant’s mortgage, as well as constructive notice, if the Chattel Mortgage act applied. None of them appear to have taken any action subsequent to its birth dealing with the calf as a separate piece of property, or parting with any values because of its separate existence. There is nothing shown which should prevent the application" of the ordinary rule partus sequitur ventrera.

The calf, being the progeny of the dam named in the complainant’s mortgage, was not after-acquired property, but had a potential existence when the complainant’s mortgage was made and was included within the lien of that mortgage.

I will advise an order sustaining the exception and ordering the receivers to account for the $25, the price at which they sold the calf.


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    John J. McCartan et al. v. The Inhabitants of the City of Trenton and Robert A. Montgomery.
    [Decided and Filed November 30th, 1898.]
    1. An abutting owner in a city, who is liable to pay a part of the expense of improving the avenue on which his lot fronts, is entitled to the beneficial performance of an agreement made between the city and a contractor for the improvement of the avenue; and where the city authorities accept an imperfect or fraudulent performance of the contract such abutting owner has a standing in equity to ask a restraint against the payment of the contract price by the city until the contract be performed or the contractor be obliged to recover the price at law.
    2. A’slight variance in the performance from the precise terms of the contract, which does not materially or injuriously change the character of the improvement, but rather betters it without increased cost, and which was made in good faith with the previous approval of the proper authorities of the city, is not a ground upon which a court of equity will restrain the payment of the contract price.
    On bill and affidavits, answer and affidavits and order to show cause.

      Mr. William J. Walsh, for the complainants.

      Mr. George W. Maepherson, for the city of Trenton.

      Mr. William M. Lanning, for Robert A. Montgomery.
   Grey, V. C.

The bill in this case is filed by the complainants, who are abutting owners on Pennington avenue, in the outskirts of Trenton, and liable to pay part of the expense of an improvement of that avenue, made under a contract between the city of Trenton and one Robert A. Montgomery. The city of Trenton and Montgomery are made defendants. The improvement has been made, $4,260, part of the contract price, has been paid, and the bill seeks to restrain the payment of the remaining $8,000 to Montgomery, upon a. charge that he has failed to comply with the terms of the contract, and that the city council, when notified of that failure, refused or neglected to investigate the facts or to take any steps to compel compliance.

There is no charge of fraudulent collusion between the city council or its employes and the contractor, but simply an allegation that the contractor furnished different material from that required by the contract, that the city authorities accepted and allowed this variance, and that the material so supplied was inferior to that named in the contract.

The ordinance under which the contract for the improvement was entered into, directed that the avenue be paved with “ vitrified paving brick” except the portion lying between the rails of the passenger railway track. The advertised proposals for construction invited bids for a pavement of “vitrified paving brick.” The contract calls for paving “ with wire-cut vitrified brick, No. 3, from the Savage Eire Brick Company,” and that the contractor should “ furnish said materials in strict conformity to the requirements of the specifications hereto annexed,” which were part of the contract. The annexed specifications provide that “the brick must be hard-burned vitrified paving brick, the quality and shape to be satisfactory to the street committee and the engineer,” with a provision for a test of samples to determine their quality.

The actions of the defendants which the bill challenges are the furnishing by the contractor for a part of the work, of a brick which was known as a “ re-pressed brick,” and which the complainants allege is of an inferior quality, and in another part a wire-cut brick, inferior in quality and lacking in weight. The complainants insist that wire-cut bricks have a rough side, which enables more grouting or filling of cement to be poured into the interstices of the laid pavement than can be done with a “re-pressed” brick, and they assert the former so grouted makes a superior pavement.

The complainants protested to the city council that the contractor “ was not using the kind and quality of brick specified by the contract,” and asked an investigation and a refusal of payment. They assert that the council gave them no opportunity to be heard and made no investigation, and reported and passed a resolution to pay the contractor, who has thus obtained $4,260 of the contract price. They pray that the contractor may be decreed to take up and relay the pavement with the material required by the contract and that the city may be restrained from paying the. balance of the contract price, &c.

The rights in equity of an abutting owner who may be called' upon to pay part of the expense of an improvement of this character have been defined in this state by the court of errors in the case of Lodor v. McGovern et al., 3 Dick. Ch. Rep. 275. Where, even if there be no fraud alleged, the work has not been properly done with respect to either materials or workmanship, the abutting owner who may be called upon to pay at the price of perfect materials and work - has a standing in equity, in case the city wrongfully accepts the inferior performance, to have it restrained from making payment until the contractor shall have established his right thereto in a court of law. Lodor v. McGovern, supra.

The question presented for determination here is whether there is shown an acceptance of materials or work inferior to the standard required by the contract and a purpose to pay for them the contract price.

The city of Trenton files answer to the bill with accompanying affidavits and denies the statement that there was no inquiry touching the suggestions of the complainants’ protest, and I think the proofs conclusively show that the council caused an investigation to be made. They aver that it was found that the facts stated in the complainants’ protest'were untrue, and that on examination it appeared that none but wire-cut brick of the best quality from the Savage Fire Brick Company were being used by the contractor. The complainants’ petition or protest states that théy are informed and believe that the contractor is not using the brick specified in the contract, and does not indicate that the petitioners had any personal knowledge on the subject which might suggest the propriety of their attendance to disclose it when the investigation should be had. It does not request that, they be heard on the subject, nor does anything otherwise appear which notified the city council that they desired a hearing, and nowhere is there any showing that there was any denial of a hearing. The action of the council and its committee appears to have' been fair and diligent in looking into the suggested wrongdoing, and the proofs do not lead me to believe that any injustice was done to the city or to the complainants in this regard.

As to the charge that inferior bricks were used, or such as varied from the character required by the contract, the defendants insist and an examination of the affidavits and the contract shows, that the bricks used were all “wire-cut vitrified bricks,” and that “re-pressed” wire-cut brick is within the terms of the contract, and not excluded by its terms. They insist and I think the weight of the evidence, considering all of the affidavits on both sides, shows, that a “ re-pressed ” brick is heavier, contains more clay and absorbs less water than a brick not re-pressed,” that the object in laying a pavement is not to get a large quantity of cement between the courses, but only a sufficient quantity to make one course adhere firmly to the next, thus securing a uniformly even and strong surface for the whole pavement, that for this purpose the specifications required the grouting to be of pure cement, unmixed with sand, and that the use of a wire-cut re-pressed vitrified brick best attains this result.

The provisions of the contract do not exclude a “ re-pressed ” vitrified paving brick, and if there be any variance in quality between a “ re-pressed ” brick and one not “ re-pressed,” both being wire-cut vitrified,” the choice appears, by the specifications, to have been left to the street committee and engineer, who accepted the “ re-pressed.”

The weight of expert opinion in the affidavits goes decidedly to show that the re-pressing improves the quality of the brick, increases its density, weight and uniformity of size, and makes a more regularly even surface of pavement, when the bricks are laid.

The affidavits of the city engineer, who declares after many years’ experience in his profession, in building brick-paved roads, “that the bricks used on Pennington avenue are fully as good as any vitrified brick ever laid in Trentonof Mr. Roberts, a brickmaker of twenty years’ experience, owning a lot on Pennington avenue, that the “re-pressed” bricks there used are heavier, more uniform in size, contain more clay, make a better pavement and endure more heavy traffic than those not “ repressed,” satisfy me that the quality criticised is not a vice, but a virtue.

There seems to be but one indication of a variance in the bricks furnished from those required by the contract. It appears that there was used for three hundred feet of the avenue, a wire-cut vitrified re-pressed paving brick, made by the Savage company, which was a No. 2 and not a No. 3, as named in the contract. It also appears that the No. 2 brick is heavier, contains more clay, is more durable and more expensive than No. 3, and that before using the No. 2, instead of the No. 3, the city engineer and street committee approved and authorized the variance. It happened that the company whose bricks the contractor was obliged to supply was short of No. 3 and for the limited space named, No. 2 was substituted with the approval of the engineer and the street committee. This variance from the strict terms of the contract did not alter the character of the material to be used, nor did the change in number make a different style of pavement, or operate in any way to the disadvantage of the work, but rather to its betterment.

It must be remembered that the complainants are not parties to the contract. As abutting owners they are liable to pay a part of the price, and for this reason they are'beneficially interested in its performance. If the action of the city officials and of the contractor is such that the contract is not substantially varied, and all of its benefits or greater benefits than those provided by it are secured, the complainants will have all they are entitled to and are threatened with no injury. • They have no right to insist upon a “Chinese” performance of the contract. Where the evidence shows that the variance in the performance was not substantial, and has neither materially nor injuriously changed the character of the pavement contracted to be laid, and nothing appears to impugn the good faith of the transaction, it would be inequitable to tie up the payment of two-thirds of the contract price and force the contractor to the delay and expense of a suit at law. In the present case, if the contractor were so required, and in the law court showed performance as he has done here, and that the bricks furnished were within the strict terms of the contract, except as to a limited portion which varied only in the number, but that the No. 2 which was furnished was in every way better for the use in question than the No. 3 specified in the contract, and that this substitution of the better brick was made, after previous examination and approval, in good faith by the proper representatives of the city — if such a case was presented in a court of law, is there any doubt that the contractor should recover? That is the case exhibited here, and the contractor, on such a showing, ought not to be subjected to the delay and expense of a suit at law.

I will advise that the order to show cause and the restraint be dismissed, with costs.


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    Mary C. Parker. v. Charles H. Parker.
    [Filed January 11th, 1899.]
    1. On a bill for alimony, under section 20 of the Divorce act, there must be both abandonment and refusal of support to justify a decree.
    2. Where the husband unjustly and untruthfully accused his wife of unfaithfulness to him, and frequently told her that she might go to her own home if she did not like his proceedings, and finally struck her a blow in the face, in anger, and with such force as to injure her eyesight, she was justified in separating from him, and this was an abandonment by him under the statute.
    3. Where the husband has for years refused and failed to support his wife and child, and they have lived apart from him, and he definitely rejects, without cause, the wife’s personal appeal to him for a reunion, such a rejection is an abandonment by the husband of his wife, within the meaning of the statute.
    4. After suit brought because of such abandonment and refusal of support, a formal invitation by the husband to the wife to return to his house, unaccompanied by any evidence whatever of a purpose to treat her with justice and consideration, and while he yet continues to refuse even to speak to her, so that she fears to return to him, will not relieve him from the consequence of his abandonment and refusal to support her.
    On bill for alimony, answer and proofs.

      Mr. Jonathan W Acton, for the complainant.

      Mr. William T. Milliard, for the defendant.
   Grey, V. C.

The bill in this case is filed by the complainant wife to compel her husband, the defendant, to support her. An order was made shortly after the bill was filed, directing the payment of alimony until the husband should in a proper manner give the complainant a suitable home in accordance with his legal obligation, &c. He refused to pay any alimony, claiming that he has been at all' times ready and anxious to have her live with him in a suitable home, and on this issue much the greater part of the testimony was taken. After each side had thus exposed his or her whole case to the other, it was agreed that the testimony already taken should be read as if received, and the case heard, on final hearing. An answer was then filed by the defendant, and very little more testimony was taken at the hearing.

The relief sought is under section 20 of the Divorce act. Gen. Stat. p. 1270. By virtue of this act, support may be decreed when it appears that the husband has both abandoned the wife and refused to support her.

There is no question whatever in this case that the husband has for years refused to support his wife and child. He admits it and claims to justify his refusal by insisting that he did not abandon his wife, but that she separated herself from him without cause. The attention of the litigants has been given solely to the maintenance or overthrow of the claim that the husband did, in the consideration of a court of equity, abandon his wife.

When the husband so deals with the wife that she is compelled to leave him because of his cruel treatment, their separation will be deemed, in the view of this court, an abandonment by him. Maas v. Maas, 7 Stew. Eq. 113. And even if she without justification leave him, but seeks to return to him, and -lie refuses to receive her, this is such abandonment by him as to justify the-enforcement of the statute, although the husband does give her partial support. Cory v. Cory, 3 Stock. 402; Anshutz v. Anshutz, 1 C. E. Gr. 165.

To ascertain the relations of the parties in this case a summary review of the pleadings and evidence in the cause is necessary.

The parties were married in August of the year 1890. They -resided for a short time in Philadelphia, and in September, 1890, moved to Salem, New Jersey, and lived there, and have -continued to live in the State of New Jersey ever since. Shortly, after their marriage they resided for a time with the parents of the complainant. In February, 1892, a child was born to them, .and while the child was yet a few weeks old the husband left the wife and went elsewhere in the city of Salem to board, living apart from her for several months. The complainant followed him when her child was about two months old and went to live with him at the place where he boarded, and shortly .after this the defendant purchased a house of his own and the parties began housekeeping. In 1892 the complainant was taken ill while in her mother’s house. A day or two afterwards, when .she had somewhat recovered, she returned to her husband’s house, and on the day of her arrival he desired to have his supper .prepared, and became very angry at the delay or disregard of .his request, and in the course of a quarrel which arose from his remarks either to the servant girl or to the wife, he struck his ■wife across the face with his open hand (while she was carrying the baby in her arms), as he admits in anger, and with such force that for a long while afterwards her eyesight was injured. 'She alleges, and I think proves, that he had frequently used .harsh and violent language to her, and that he threatened her with violence, and told her if she did. not like his proceedings, to get out of his house, and that in consequence of this harsh usage, on receiving the blow in the face she fled with her child to the home of her brother, where she has since remained. She •states that she has frequently applied to her husband to take her to his home and treat her with the consideration due a wife. 'She took her child and went back, seeking to live with him, in ■October, 1892, and he told her to go home. This was at ten .or eleven o’clock at night. He has refused to provide for her •or to receive her, or to provide for their child.

The defendant is a glassblower, in receipt of large weekly wages, and owns a house and lot in the city of Salem, but ever :since October, 1892, when he struck his wife in the face and she left his house, he has made no provision whatever for her or for the child. The expense of her living for both herself and her child has been defrayed by her brother; and when she .applied to her husband for assistance he has told her that she could go to her brother for help.

The defendant, by his answer, states the quarrel, when he struck her, to have resulted from, his wife rebuking him for reproving the servant for delay in getting his supper, and that he struck her because she aggravatingly dared him to do so. He admits that he has refused to provide for her or her child unless they come to live with him, and denies that he is under any obligation to provide for them elsewhere, but states that he is willing and able to provide for them at his own house. He states that since the time when she went to her brother in 1892, she has frequently met him on the streets and taken long walks to secluded parts of the suburbs of the town with him, and has frequently permitted him to have sexual intercourse with her, and has come to his house and passed the night in the same bed with him; and he states that she, at, his solicitation, has promised to come and stay with him, but has broken her word, stating that her parents were opposed to her coming back and living with the defendant; that, disappointed and enraged at her duplicity, he finally wrote her a letter in which he stated,he would never live with her again, which letter, he states, was not an exponent of his real feeling, as he has always been ready to have his wife return to him, never desiring her to leave his house, and now has a good home for her to live in, which he desires she shall share with him.

That the husband struck the wife in the fiice in anger is admitted by him, and evidence as to the blow is given by the wife and her brother. The violence of the husband appears to have been the culmination of harsh treatment which was habitually used toward the wife, even when she was sick and weak, and it produced a continuing condition of fear of her husband. After their separation, because of this treatment, the wife kept her permanent home with her parents or her brother; she occasionally visited her husband’s house, but only for very short periods, a day or a night, and she never recovered from her fear of him. This continued up to the year 1895, when their relations appear to have ceased. The defendant is shown to have been entirely willing to have such relations with his wife as enabled him to enjoy all the privileges of a husband. He subjected her to the probable dangers which attend upon maternity, but the responsibilities of maintenance of the wife and of his child, which the law casts upon him, and which he was well able to undertake, he declined to assume, and compelled her to depend on her own family. Her statement that her approaches to him were made in the hope that she might win back his affections, and that it was for this reason that she received him as her husband, I think is consistent with the weight ot the evidence, and her conduct in this respect was proper and right.

He claims to explain and justify his refusal to support his wife and child by asserting that he has been desirous that she should live with him and always had his house open to her, but she refused to come to his house, and he was not willing to support her elsewhere. The husband’s testimony alone attempts to show that the issue between these parties turned upon the question whether the wife should live in his house, or as to the place where they should live together. Their difference and separation was occasioned by the husband’s cruel conduct. There is no proof whatever that he afterwards sought to regain his wife’s confidence, save his unsupported assertions, which do not accord with his admitted actions. From the time of the separation, because of his violence, the efforts for a reunion were made on the part of the wife — she sought him out, she allowed to him a husband’s privileges up to the year 1895, but does not appear-to have regained his affections.

The testimony not only of the wife but of the husband himself shows that his treatment of his wife was harsh and cruel, such as might inspire in her at times of sickness and of weakness (which in her case were quite frequent) a fear of actual physical violence. He never expressed any regret for his unmanly blow. In response to her frequent demands for support, he as frequently refused her, and seemed to be entirely willing that her maintenance should be furnished by her own family. He sends her a letter through the mail, addressing her as “ MissLudwick,” her maiden name, and by his own statements appears’ to have treated her with contempt and disdain.

His letter of May 18th, 1896, sent just before the bill was-filed in this case, is expository of the true relations of the parties. They had separated in 1892, because of his cruelty to his wife. Though weak in health, and having the sole care of their child, and obliged to live upon the bounty of her family, she had endeavored up to 1895 to bring about a renewal of kind feelings, but she failed.

In May, 1896, their child, Florence, became sick. The testimony of the defendant narrates the circumstances under which he and his wife had an interview which led to the letters of that month. The defendant swears that, at the wife’s request, he called twice to see their sick child, who, with the wife, was living at her father’s house. He testifies that she “ used me all right the first time. She asked me to come again to tea in the evening.” He refused to come to tea, but came in the evening. The complainant doubtless deemed this to be a favorable time to appeal to his better nature. As he was leaving, she approached him, asking for a reconciliation. His own account of his conduct is—

“ I took my hand and pushed her away from me, and told her that this was no time to ask for a reconciliation; that people were saying some hard things about her in town; that as soon as Florence got well, her and I would have a talk.”

He then left. the house. By this mention of “ hard things ” said about the complainant, he referred to an accusation of unfaithful conduct on her part. He admits that the only foundation for this cruel charge was the casual statement of a man named Vanneman, that he had seen the complainant riding along the street in a carriage with another man. It may be said once and for all that there is no shadow of proof of any misconduct on the part of the wife. She appears to have been a true and faithful wife at all times. He further testifies that shortly after this interview she wrote him a letter denying his accusations, intimating that he had himself been unfaithful to his marriage vows, and that legal proceedings might be taken to enforce recognition of her marital rights. On receiving this note, he naturally supposed she was about to sue for a divorce. This was evidently just what he wanted, and his letter of May 18th, 3896, written in reply, shows that his previous conduct had been by him adjusted with the hope and expectation of bringing about this result. In this reply of May 18th, 1896, referring to the interviews when his wife asked for a reconciliation, he writes her : “This is what I did say — you asked me for a reconciliation, and I told you no, that I only came to help you out of this trouble; that I could never live with you again.” And again, “ Now you know my intention, that I will never live with you again, so proceed with your case.” And again, “You will do me a favor if you will proceed with the case this week.” He offers, if she has not proofs enough to make a case, to give her some more which he sato himself. The letter, in its other terms, is indicative of the entire absence of any feeling of love, or even of kindly regard on the part of the writer towards the person to whom it was sent. Shortly after this letter was received, the complainant filed her bill in this cause, not for a divorce, but for alimony.

I think there can be no question that the attitude of the defendant at this time was that of a husband who had not only for years refused to support his wife, but who had, in the most explicit and insulting terms, declared his abandonment of her, and that she was entirely justified in filing her bill in this cause under the principles declared in the cases above cited.

The defendant, in his answer, seeks to explain away the effect of the above-quoted letter by alleging that he wrote it because disappointed at the failure of his efforts to induce the wife to return and while enraged at her duplicity and cruelty to him; that it was written in anger and was not expressive of his real feelings towards her. There is not a word of proof, even in his own testimony, which attempts to sustain this explanation of this brutal letter, written by a husband to a wife just after she had sought a renewal of kindly feelings. So far from being written because of failure to induce her to return, his own testimony proves that, shortly before writing this letter, he had rejected her appeal to him for a reconciliation, rudely pushing her away from him, almost at the bedside of their sick child. The duplicity and cruelty in the matter appear to have been wholly on the part of the defendant himself, and to be so obvious that they throw a shadow of doubt over all of his testimony, which is contradicted by the other witnesses.

The filing of this bill made it apparent to the defendant that he was not, by this proceeding, to be enabled to escape from his obligation to support his wife by means of a divorce, but that its purpose was to compel him by law to maintain her as his wife without freeing him from his marriage contract.

Shortly after this bill was filed, not for divorce but to compel support, the professions and declarations of the defendant immediately and radically changed. This man, who for years had treated his wife with contempt and refused to support either her or his child by her, who had struck her in the face, who within three months had tendered himself ready to aid her in proceedings for divorce with proofs of what he had seen of his own misconduct, now makes formal tender of his desire that she should come home as mistress of his house. He uses language, also, which is utterly unlike his previous writing, and which, as expressed, exactly meets his legal duty and plainly indicates (though he denies it) that he is writing and speaking under the suggestion of his counsel as to what is necessary for him to do to avoid a compulsory order for alimony. He admits that, under advice, he has kept a copy of his formal written offer, so that it is difficult-to believe him when he testifies that it was not written under like advice. This is the outward and visible profession which the defendant makes, but what sincerity there is in those offers and his real feelings towards the complainant, is fairly indicated by the fact that he yet justifies his previous ill treatment; that he still does nothing for the support of his wife and his child; that, except a short conversation in a lawyer’s office since this suit was brought, he has not spoken to his wife for years and does not now speak to her when they meet. It is not to be wondered at that she fears to accept his formal tender of her marital rights, and wants, as she testifies, to have time to see by his acts and conversation whether he “ will do right by her” if she will go back. He has given no evidence whatever that he has any kindly feeling for her. He simply makes a formal proffer to do his legal duty.

Of what sort of a house would she be mistress should she accept his offer? She must live with a man who but a few months before had made to her, in his own handwriting, a moct insulting proposal to furnish proof of his treachery to his marriage vows, who had treated her-with constant disdain and finally with such actual cruelty that she is yet afraid to live with him, and who has never in any way expressed the slightest regret for his evil conduct — indeed yet proves the existence of his own contempt for her and its continuance by persistently refusing to speak to her.

She testifies that she is afraid to go — that she fears that she will receive the same treatment to which she was formerly subjected. So far as words are concerned, when it was made apparent to the husband that it was intended to force him by law to support his wife and child, there is a profession of willingness to perform that duty. But his refusal to speak to his wife and to treat her with that consideration which might make her acceptance of his formal proposition an endurable association with her husband, show that his conduct is insincere and deceitful, as his feeling towards her is unkind, at the very time he is making these professions of his willingness and desire that she should return to him. It is quite evident that his offer to receive her into his home as the mistress of his house is a mere pretence to avoid the making of a mandatory order upon him to maintain her.

I am compelled to believe that these declarations of willingness to perform his marital duties, on the part of the defendant, are of the same class as those commented upon in the case of Elliott v. Elliott, 3 Dick. Ch. Rep. 238, as follows: “While the law regards a sincere and honest desire, on the part of the husband, to put an end to an unfortunate separation between himself and his wife with favor, and as tending to relieve him from responsibilities the law might otherwise impose upon him, it cannot givfe such effect to the simple declaration of a defendant in a suit already commenced, without any manifestations by act or effort that his proposition is sincere, or made with the expectation of having it accepted. Less weight is to be given to-such declaration of a party as a witness in the trial of the suit to make him liable for separation, which has not been preceded or is not accompanied or followed by any practical manifestations of sincerity.”

I am myself unable to accept the testimony of the husband and his offers to receive his wife, as sincerely made, with intention to accord to her her proper place. They appear to me-(given out as they are, after this suit was commenced, and without any manifestations on his part accompanying them that his proposition is sincere and expressive of a true purpose) to be made simply to avoid the imperative effect of an order for maintenance in this case.

The proofs show that the defendant is- the owner of a house- and lot, and that he has the capacity to earn large wages — $20' per week or more — during a large portion of the year.

I will advise a decree that an allowance of $8 per week be-made for the support and maintenance of the wife and their child until the further order of the court; that the defendant give-security in the sum of $500 for such support and maintenance,, and that a counsel fee of $40 in all be allowed the counsel for the complainant, and that the defendant pay the costs of suit.


text:
    James McCarthy et al. v. John J. McCarthy et al.
    [Filed January 17th, 1899.]
    1. The statute of 1718 (Gen. Stat. p. 876 § 115) provides that copies of wills made in Great Britain, devising lands lying in New Jersey, shall be admissible in evidence the same as the original will, if certified under the seal of the office where such will is proved and lodged. To make such certified copy admissible it must appear that the will was made and proved in accordance with the laws of this state. The certificate of the foreign court that the copy of the will is true, and that the will was proven, unaccompanied by a showing of the proofs, so that this court may decide whether they comply with the requirements of our statute, cannot be received.
    2. When the devisee of a deceased defendant in partition applies for payment out of this court of his share of the proceeds of sale, notice of the application must be given to the heirs and next of kin of the decedent.
    On bill for partition. Petition of Elizabeth Ahern et al.

      Mr. David J. Panooast, for the petitioners.
   Grey, V. C.

This is a petition filed by Elizabeth Ahern and Helen Me-; Carthy, as trustees under the will of Joseph McCarthy, deceased,' asking that there be paid to them the sum of $1,213.12, now in the depository of this court, as the share of Joseph McCarthy, deceased, in the proceeds of a sale made under the order of this court in the above-entitled cause. Joseph McCarthy died in March, 1891, leaving him surviving his widow, Georgiana, and his two minor children, Daniel and Jennie, all of whom live in England. In May, 1891, the petitioner Elizabeth Ahern, who was named in the will as sole executrix, probated it in the high court of justice, probate, divorce and admiralty division of England, where the original remains on file, and undertook the administration of the estate. The petitioners also accepted the trust named in the will. A copy of the will is annexed to the petition. Tire only portion affecting this case is the residuary clause, which is in these words :

“The remainder of my property, of every description, real, personal or mixed, I leave to the above-mentioned trustees, to be held by them on trust for the benefit of my wife and children, as follows, that is to say, one-third to my wife, one-third to my son, and the remaining one-third to my daughter.”

The attestation clause is in these words:

“Signed by above testator in our presence, who in his presence and in the presence of each other present at the same time have subscribed our names as witnesses.
“Elizabeth Ahern.
“Bessie Pierce.”

The witness Elizabeth Ahern is the same person who is named in the will as the executrix, as one of the trustees, and residuary legatee in the trust. The petition recites the due execution of the will in all the particulars required by our statute, and declares that the petitioners are entitled to have the fund above referred to paid into this court upon the trusts set forth in the will. They pray that an order may be made directing the payment of the fund to them, and counsel now riioves for an order of course, directing the payment of the fund in court to the petitioners, without reference to a master or further inquiry.

The petition is verified by the ordinary affidavits of the petitioners that the facts therein stated are true, &c. In aid of the petition there is offered a certified copy of the will extracted from the high court of justice, probate division, &c., under seal of the district registrar, Bodmin district, England, to which is added a verification of the signature of the registrar, and of his seal under the hand and official seal of the United States consul-general at London. There is also added a certified copy of the oath of Elizabeth Ahern, to the effect that she believes the will to be true and genuine and that she will well and faithfully administer the estate. This is also under certificate of the district registrar. None of these certificates exhibit the proofs made at the time of the probate of the will in England. The only reference in the certificate to the proof of the will in England, is as follows:

“Proved at Bodmin, the twelfth day of May, 1891, by the oath of Elizabeth Ahern, seamstress, the aunt, the sole executrix, to whom administration was granted.”

The share of the proceeds of the partition sale of Joseph remaining in this court is real estate. Lerch v. Oberly, 3 C. E. Gr. 578. The decedent does not appear to have done anything since the judicial sale of the land by the master manifesting an intention to change his share from its character as real estáte, into personal property. As real estate, the decedent’s share would descend to his heirs-at-law, unless it be shown that by a will, lawfully executed to pass real estate in New Jersey, he devised the property to other persons. This presents the question whether the petition and proofs submitted show the due execution of a will in accordance with the requirements of the statutes of this state.

The foreign certificates show the execution of the will and its probate in England. The statute of 1713, which may be found in Gen. Stat. under the head of “Conveyances,” p. 876 § 115, provides that copies of a will made in Great Britain by which lands in New Jersey are devised, certified under the seal of the office where the will is proved, may be given and shall be received before any court within this province, &c. This act is still in force. See 4 Griff. Reg. p. 1241 §§ 72, 73; Graham v. Whitely, 2 Dutch. 254, 259; Nelson v. Potter, 21 Vr. 328.

By the express terms of the act of 1713, it is the copy of the will, certified under the seal of the office in which it has been proved and lodged, which is admissible in evidence. This proof of the will in the foreign jurisdiction must be such as would, in this state, efficiently prove a will. Some of this proof would not necessarily be shown by a certified copy of the will only. For instance, the written signatures of the testator and the two witnesses would appear on the face of the copy of the will, but the other elements of efficient execution, publication and signing in the presence of two witnesses present at the same time, need not be written into the attestation clause of the will. These may, if they happened, be shown by proof aliunde on the probate of the will. The attestation clause in the will now before me does not attest its publication as a will. Combs v. Jolly, 2 Gr. Ch. 626. If, in the foreign jurisdiction, proof of such publication was not made, then there has been no proof of the will such as the statute of this state contemplates, and the certified copy is not admissible in evidence. In order to make the certified copy admissible, it must appear that the will, copy of which is certified, was duly proven to have been executed according to the requirements of the statutes of this state, and to show this there must be offered not only the certified copy of the will, but also of the proofs on which it was probated.

This construction of this statute accords not only with the express terms of the act, but also with the purpose of the legislation. It was not intended to allow the foreign jurisdiction to declare what should constitute an efficient execution of a will passing lands lying in this state, nor conclusively to determine when such a will is sufficiently proven. The object of the legislation was to make the copy of an efficiently-proved will, certified under the seal of the foreign court, admissible in evidence, in order to avoid the great inconvenience of producing the original will. The foreign court may certify the copy of a will which is shown to have been duly proved, but it is the courts of New Jersey which must determine whether the will and its proof conform to the law of this state.

This is the view taken by Mr. "William Griffith in commenting upon section 4 of the act of 1713, and his declaration is even more forceful when applied to a copy of a will offered under section 3 of that act. Section 4 relates to copies of wills made in her majesty’s colonies, devising lands lying in this state, and provides that, “ being proven according to the custom of such colony,” the copy shall be received in evidence in our courts. Section 2 relates to wills (devising New Jersey lands) which are made in Great Britain and Ireland, and declares that copies of these, when certified under the seal of the office where such will is proved, and lodged, shall be received in evidence in our courts. The language of these sections is the same as to receiving the •copies in evidence in our courts, but is somewhat variant as to the mode in which the foreign will shall have been proved. When it is made in a colony, it being proven according to the •custom of such colony, a certified copy will be here received in evidence. If this section of this old statute is yet forceful .according to its terms, there may be as many different modes of proving a will devising lands in New Jersey as the varying laws of the different colonies or states may prescribe. It may well be doubted whether our courts would destroy the uniformity of •our modes of procedure by supporting the proof of a will which accords with the laws of a foreign state, when such mode of proof varies substantially from that required in this state.

The question is not 'here presented, as the copy under consideration is offered under section 3 of a will proven in England. As to such wills that section prescribes no mode of proof, nor does it specify according to what law the proof shall be made. The presumption is, in the absence of such expression, that the will must be proven according to the laws of this state.

Mr. Griffith, in a note to section 4, which requires proof according to the custom of the colony where the will was made, •commenting on that provision, and also on the acts of congress which make the copy of a will and its proofs in another state •evidence in this state, declares as to the will, “ but still it must .appear to be executed in such manner as our law requires,” &c. 4 Griff. Reg. p. 1241 note 1. Mr. Griffith evidently considered that the certificate from the foreign state could not give vitality •to the foreign-made will, when the will itself did not appear to be executed in such manner as our law requires.

In the case in hand, the copy of the will does not show it to have been published by the testator as our law requires, and no copy of the proofs which would show it accompanies the copy of the will.

In defining the requirements necessary to the admission in evidence of the transcript of the record of the probate of a will proved in this state the supreme court declared that it must contain the proofs prescribed by the statute, and that without them the transcript could not be received in evidence. Allaire v. Allaire, 8 Vr. 319; affirmed on error, 10 Vr. 117. If the meaning of the act regarding the admissibility of copies of wills under the certificate of a foreign jurisdiction were doubtful it should, if possible, be construed to have the same effect as is given to statutes applicable to offers of like certificates from our own courts. It can hardly be believed that the law of this state rejects the certified copy of a will proved before a New Jersey court because the transcript does not show the proofs, while it admits a certified copy of a will proved before a foreign court without any exhibition of the proofs.

In the present case there is no offer with the certified copy of the will of the depositions taken (if any were taken) for its probate. All that appears is the memorandum, “ Proved at Bodmin,” &c. This court cannot accept the determination of the foreign jurisdiction that the will has been proven, without an exhibition of the proofs, in order that this court may decide whether the will was executed and the proofs made in accordance with the requirements of the law of this state. For this reason the certified copy of the will cannot be received.

Irrespective of the sufficiency of the proof submitted, however, no order of course should be made for the payment of the proceeds of the sale to the petitioner for the following reasons: It was Joseph McCarthy’s estate which produced the funds; he was the party to the partition suit for whose benefit the fund came into court. It is real estate. Lerch v. Oberly, ubi supra. There has never been any ascertainment of the persons who are, as his heirs or next of kin, interested in the fund.

It is necessary that they should be identified, and notified of a proceeding which so clearly affects their interests. The heirs and next of kin should be given a day for a hearing before payment should be made — the heirs that they may have an opportunity to insist that the fund has descended to them as real estate, and to deny, if they choose, the efficacy of the alleged will; the next of kin that they may also show that the decedent had in some way ratified and accepted the conversion from- realty into personalty.

Another reason for farther inquiry is, that by the terms of the will, a copy of which is annexed to the petition, the petitioners have power to act as guardians ” for the children who are yet minors. Under the will or as heirs-at-law it is clear that the children have a beneficial interest in the fund. Both the petitioners and the minor children are residents of England. This situation brings the matter very closely to that condition of things when, under Gen. Stat. p. 1617 § 9 et seq., proofs must be submitted that security has been given, &c., before an order can be made removing the property, &c.

An order of reference should be made to a master to summon the parties interested and to ascertain and report upon the truth of the matters set forth in the petition, and whether the prayer of the petition should be granted, and if so, upon what terms.