author: Garrison, J.

text:
    Samuel Hall, appellant, v. James Nash, respondent.
    [Filed June 19th, 1899.]
    1. A judgment creditor who has delivered his writ of execution to the sheriff may maintain a bill in chancery to set aside a fraudulent sale of personal property made by the defendant.
    2. By force of Gen. Stat. p. Ujl8 § 18 a writ of execution from the time of its delivery to the sheriff binds the goods of the defendant as against himself and his assigns.
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Nash v. Hall, 39 Atl. Rep. 374.

      Mr. John W. Beekman, for the appellant.

      Mr. Otto Crouse, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

The decree of the court of chancery is affirmed, for the reasons . given in that court.

A question has been discussed in the briefs of counsel upon the argument of this appeal that does not seem to have been raised in the court below, viz., whether the complainant had a lien upon the personal property of the defendant at the time he filed his bill to set aside the bill of sale.

The pertinent facts are that an execution against the defendant had been delivered to the sheriff, who had returned it “nulla bona.” By force of this proceeding, the writ, from the time of its delivery to the sheriff, bound the goods of the defendant as against himself and his assigns. Gen. Stat. p. 1418 § 18.

In what other respects, if any, it has the force and effect of a levy, need not now be decided. The effect of the legislation in question is to give to a judgment creditor who has delivered his writ to the sheriff a special interest in the goods of his debtor different to that of other judgment creditors.

The statute under consideration was passed February 18th, 1799 (Pat. L. p. 369), and was substantially a copy of 29 Chas. II. c. 3, 16, which act, we are informed by the English judges, was passed to remedy the mischief that arose from the common-law rule that the writ, whenever executed, should relate to its own teste.

The legislation that we have thus adopted has been construed by the courts of England' to make a fieri facias from the date of its delivery for execution binding upon the goods of the defendant as to himself and all who claim under him, and this is as far as we need to go in the decision of the point that has been raised.

This is the conclusion that was reached in our supreme court in Evans v. Walsh, 12 Vr. 281, in which Mr. Justice Van Syckel discusses the cases with such fullness as to render further citation unnecessary.

In Glorieux v. Schwartz, 8 Dick. Ch. Rep. 231, the syllabus is misleading. The opinion of Vice-Chancellor Bird, which was adopted by this court, did not decide that a levy was necessary, but only that none had been proved.

I shall vote to affirm the decree.

For affirmance- — The Chief-Justice, Van Syckel, Dixon, Gabbison, Lippincott, Gummeee, Ludlow, Collins, Bogebt, Hendbickson, Adams, Nixon, Vbedenbubgh — 13.

For reversal — None.


source: Caselaw Access Project

license: Public Domain

text:
    Henry C. Loudenslager, appellant, v. Woodbury Heights Land Company, respondent.
    [Filed June 19th, 1899.]
    1. Equity forbids any person standing in a fiduciary position from making any profit at the expense of the party whose interest he is bound to protect without making a full disclosure of his relationship in the transaction.
    2. Where a profit has been made without such disclosure the exact measure ■ of the relief in equity is that the defendant account for the profit that he had made.
    3. R. employed L. to obtain options for R. for the purchase of certain lands, L.’s compensation to be one-half of the profit realized upon their sale. R., with L. and others, organized a company to buy the lalnds of E. L. did not disclose to the company his agreement for compensation, and R. did not impart to it the prices named in his options. The company purchased the lands at a profit to E. — Held, in a suit against L., that he must account for the profit he had made, and that a decree against him for the whole profit of the transaction was erroneous.
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Woodbury Heights Land Co. v. Loudenslager, 10 Dick. Ch. Rep. 78.

      Mr. Samuel H. Grey, for the appellant.

      Mr. Howard M. Gooper and Mr. David J. Pancoast, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

For an extended statement of the facts of this case I refer to the opinion of Vice-Chancellor Pitney. 10 Dick. Ch. Rep. 78.

I quite agree with the learned vice-chancellor that the case made by the bill was in nowise sustained by the proofs. The case made by the bill was that Henry C. Loudenslager, the sole defendant,

“conceived the idea and concocted the plan, for his own benefit and advantage, of acquiring an option or right to purchase a large tract of land near Woodbury in [Gloucester] county, and forming a company among his friends and associates to purchase said lands from him at a price greatly more than that which he should pay therefor, thereby making a large pecuniary gain for himself.”

That, in furtherance of such project, said Loudenslager promoted the complainant corporation and, in further pursuance of his fraudulent design, had conveyed to himself the said lands, aggregating about four hundred acres, which he conveyed to the complainant company at a price greatly in excess of that paid by him for said lands, fraudulently receiving and retaining the said excess. Had this state of facts been proved, there could have been no question as to the propriety of a decree that required Loudenslager to account for and pay over the difference between the price lie received from the compláinant for said lands and that which he paid to the owners therefor. The facts proved, however, were of a totally different nature and lead, in my opinion, to a radical modification of the decree rendered in the court of chancery.

Briefly stated, the case as made by the testimony was this: One Joseph B. Roe, who was the owner of a farm near Wood-bury, being in embarrassed circumstances and desirous to sell his lands to the best advantage, conceived the idea of obtaining options for the purchase of several adjoining tracts, rightly deeming that thereby the market value of all the lands embraced in this comprehensive scheme would be enhanced. Being able to obtain some but not all of the required options, Roe called upon Henry C. Loudenslager, then county clerk, to aid him in procuring those options that he had been unable to obtain, agreeing to divide with Loudenslager whatever profit might be made by Roe out of the sale of the entire tract represented by said options. Roe’s idea at first was to sell the tract to a charitable school then unlocated, but this fell through. He then negotiated with one Long, who partly organized a syndicate to buy the lands of Roe. This also fell through. While matters were in this position, and'in order to avoid the lien of a judgment that had been obtained against him, Roe transferred his options to Loudenslager, to whom also he conveyed his own .farm. The complainant company was organized by Roe, Loudenslager and others for the purpose of buying the lands in question, and when a price for the purchase of the lands had been agreed upon they were conveyed to Loudenslager and by him conveyed to the company, the price paid by the company being greater than that which Roe had agreed to pay and which Loudenslager, for him, actually did pay to the owners. For the whole of this difference between what Loudenslager received for Roe and what he paid out for Roe a decree went against him in a suit to which Roe was not a party.

I think this decree is inequitable, and that it can be supported only to the extent that Loudenslager was benefited by his agreement with Roe, viz., for one-half of the profit of Roe’s original scheme. As to this profit, and how it was to arise, Loudenslager was under an affirmative duty either to disclose it to his associates or to forego any benefit from it. For his failure to make a full disclosure of this relationship to the transaction equity will decree that he may not make any profit out of the affair; but to go further and to decree that for his failure to impart to his fellows the information he possessed as to the price at which the land could be bought he will be decreed to pay to the corporation a sum of money in excess of his profit, is to impose a punishment, not to provide a remedy.. The only circumstances in the case upon which such a decree could be based are that Loudenslager was the holder of the options and the person from whom the company received its title, and to whom it paid the gross price.' The vice-chancellor, however, has found — and the fact indubitably appears — that each and all of these circumstances were purely fortuitous,'arising solely from Roe’s desire to elude an execution, and that Loudenslager was in this respect' the mere conduit between Roe and the company. The inequity of holding Loudenslager under these circumstances for a profit not made by him was evidently cogent with the learned vice-chancellor, for he states the situation as he finds it with great clearness, and then, by what seems to be a non sequitur, avoids the logical result.

He says (at p. 95): “It was also urged that the circumstances that the title in this case passed, through defendant was not a part of the original plan of the' defendant and Dr. Roe, but was the result of fortuitous circumstances not connected with the case, and ought not to operate to the prejudice of the defendant. I am inclined to the opinion that the defendant’s contention of fact in that respect is correct; but, admitting it to be true, the question still remains, how would the case stand if the conveyances from the outside parties had been made to Dr. Eoe and by him to the company, and the suit had been against Dr. Eoe and the defendant jointly? In that case it seems to me that, as against the defendant, the complainant’s right to recover his share of the profit would be quite as clear, if not clearer, than it is under the present state of the case. He would then, as now, still stand in the position of aiding Dr. Eoe in making a secret profit out of the company and dividing it with him, and all while he was acting as a trustee of the company. In short, the essence of the transaction would not be changed.”

Upon the state of facts embodied in this citation and the state of the case there outlined, which is in effect to put the matter upon its equitable footing, I am content to rest the view for which I am contending, for in a suit to which Eoe and Loudenslager were both defendants, upon its being established that Eoe alone held the options and obtained for the company the title to the lands purchased,' and received from it the purchase-price, and that Loudenslager was a party solely because of his agreement that Eoe should pay him half of the profit as a compensation, Loudenslager could not, in my opinion, be held beyond the profit he made out of the company. The principle running through all the authorities upon this branch of the law rests not upon the imposition of a penalty for concealment, but upon the single ground that one in a fiduciary capacity will not be permitted to retain a profit inequitably obtained. This is the rule and the exact measure of the decree, even in the case of a trustee who actually uses the company's money with which to make the proposed purchase.

In the case of Plaquemines Tropical Fruit Co. v. Buck, 7 Dick. Ch. Rep. 219, Vice-Chancellor Green thus states the rule : “ If, at the time the actual purchase was made from "White, Dr. Buck was a trustee, officer or agent of the company, he cannot be permitted to make any profit from the sale to the company, * * and if'he took a profit without disclosure, he cannot retain the same.” And to this effect are all the cases.

Upon the whole I find the clearest and most succinct statement of the law in Bisp. Pr. Eq. (2 ed.) § 238:

Equity not only views gifts and contracts wbicii are made or take place between parties occupying a confidential relation, with a jealous eye, but it goes further, and forbids any person standing in a fiduciary position from making any profit in any way at the expense of the party whose interest he is hound to protect, without the fullest and most complete disclosure.”

This proposition leads us to an interesting class of cases of which the leading one may be said to be Tyrrell v. Bank of London, in the house of lords. 10 H. L. Gas. 26. In that case there was in existence a project to start a new bank in London, and among the projectors of the scheme was the appellant, a member of the bar, whose firm, it had been agreed, were to be employed as the solicitors of the company. The appellant, hearing that a certain lot of ground was for sale, suitable for the purposes of the bank, entered into an agreement with the party who controlled the option to buy from the owners, whereby the appellant became interested in the option. He then induced his co-projectors to purchase a portion of the property at an advance, he making a certain profit by the transaction. After the arrangement was discovered, a bill in equity was filed by the company for the purpose of obtaining relief; and it was held that the appellant was accountable to the company for the profit which he had made. The case is instructive as showing the exact measure of relief which a court of equity affords in such cases and the grounds upon which that relief rests.

This case is not only instructive for the manner in which the court answered the trenchant arguments of Sir Roundell Palmer, afterward Lord Chancellor Selborne, but is of concrete interest because of its almost precise parallelism to the case in hand.

To apply to one incidentally benefited the same rule as that by which a court of equity measures the liability of the principal actor is an extension most favorable to complainant, but how the mere extension of the doctrine can lead to a change in the measure of relief is something I am unable to see.

In all such cases equity considers that the defendant holds what otherwise would have been his profit as a trustee for those from whom it was without disclosure obtained, and the remedial decree is that he refund it to its equitable owners.

To go beyond restitution and decree the actual payment of a sum of money never received by the defendant by way of profit or otherwise is to impose a penalty of a sort and in a fashion unknown to courts of equity, aside from cases of active fraud. In the-present case I am strongl)- impressed with the idea that the erroneous decree was reached because of two circumstances neither of which should have had any influence upon t.he decision of the ease. These are — first, the failure of the complainant to make Roe a party to the suit, whereby the entire complexion of the issue was confused if not changed, and second, the circumstance that Loudenslager, acting in an alien capacity, manually received the purchase-money, whereas, in fact and in equity, he received only that moiety that, under his agreement with Roe, was his.

That Loudenslager, in this tradition of title, was a mere conduit is not only found as a fact by the vice-chancellor,'but that the complainant knew that it was dealing with Roe is also clearly established by the proofs.

To the eye of equity the case will be judged not by its form or by intercurrent and insignificant incidents, but by its substance. Viewed in this light, the omission of Roe as a defendant will not be permitted to increase the liability of Loudenslager, nor will the mere tradition of the price through Loudenslager be confused with the receipt of a profit by him. Finding as I do, and as the vice-chancellor did, that Loudenslager received but one-half of the profit of the transaction between Roe and the complainant, the remedy of the complainant is that he be not permitted to retain what'he got. I shall vote for such modification of the decree as shall make it'conform to this result.

For reversal — Garrison, Lippincott, Gummere, Bogert, Hendrickson, Nixon, Vredenburgh — 7.

For affirmance — The Chief-Justice, Van Syckel, Dixon, Collins, Adams — 5.


author: Gummere, J.

text:
    Emma Bentley, executrix, &c., appellant, v. Martha Cadmus et al., respondents.
    [Filed July 20th, 1899.]
    Duty of executrix in case stated defined.
    Ou appeal from a decree of the court of chancery, filed May 7th, 1897, in Cadmus v. Bentley.

      Mr. Cortlandt Parker, for the appellant.

      Mr. George O. Vanderbilt, for the respondents.
   The opinion of the court was delivered by

Gummere, J.

The grounds of appeal, as set forth in the appellant’s petition, are that the decree of the court of chancery is erroneous in three respects — -first, because it adjudged that the estate of which the appellant is executrix was liable for, and should be charged with, certain moneys specified in the decree, with interest thereon, from a certain day; second, because the decree ordered that the said appellant, as executrix, should pay over to the respondents, out of the assets of her testator, certain moneys which were adjudged to be due to the respondents; third, because the decree directed the said appellant to assign to the respondents a certain bond and mortgage particularly described in the said decree.

The state of the case provided by the ■ appellant contains nothing except the decree, which is appealed from, and the proceedings on appeal. Whether or not the decree is erroneous in the respects indicated in the petition of appeal must depend entirely upon the evidence which was produced at the hearing. That evidence the appellant has not seen fit to bring before us, and in its absence we cannot say that there is error in the decree in either of the particulars mentioned in the petition.

The decree appealed from should be affirmed, with costs to the respondents.

For affirmance — Depue, Van Syckel, Garrison, Lippincott, Gummere, Ludlow, Collins, Bogert, Krueger, Nixon, Hendrickson, Adams, Vredenburgh — 13.

For reversal — None.


author: Per Curiam.

text:
    August Streitwolf, defendant and appellant, v. Elizabeth Streitwolf, complainant and respondent.
    [Argued March Term, 1899.
    Decided and Filed June 19th, 1899.]
    A decree of divorce obtained in another state upon a false allegation of domicile therein, will be treated as void here on the ground of fraud.
    On appeal from a decree advised by Vice-Chancellor Pitney, who delivered the following opinion :

      I think I need not hear further argument at this time. I have had occasion to examine the question involved, in the recent case of Felt v. Felt, 12 Dick. Ch. Rep. 101, now before the court of errors and appeals, and have had occasion to think of it.
    The object of this supplemental bill is to obtain a decree of the court declaring’void a decree of absolute divorce obtained by the defendant against his wife in one of the courts of the State of North Dakota after the filing of the original bill in this cause. The issue raised on this supplemental bill was, by consent of counsel, tried and submitted before the hearing upon the original bill.
    The circumstances of this case are thesé: Mr. and Mrs. Streitwolf were domiciled for many years in New Brunswick, New Jersey. Mr. Streitwolf was in business and owned a house and lot there, which he still owns and rents out. In the early part of August, 1896, his wife left him ; the parties separated. On the 17th of August of the same year she filed a bill against him for a divorce from bed and board on (he ground of cruelty, and obtained an order for alimony pendente lite against him.
    In November of that year he sold out his business in New Brunswick, but rented the building and furniture to the grantee of the business, and went to New York, and boarded there at a particular place for awhile, and then went to Europe on a pleasure tour, and spent the winter in Egypt and the Mediterranean. He returned to New York in March of the following year and remained there until May 5th, 1897.
    In the month of April, 1897, negotiations were going on between him and his wife as to a settlement of their difficulties, which produced no results. That the negotiations had entirely failed was manifest a few days before the 1st of May, as I understand Mr. Streitwolf’s evidence.
    About that time he became acquainted with a firm of lawyers, Hoggatt & Caruthers, who had an office in New York and another in Mandan, North Dakota. They were attorneys who he learned were engaged in the business of procuring divorces, and he talked with them, as I understand his evidence, and found that they had an office and representative in Mandan, North Dakota. Mr. Streitwolf had never been in Mandan; he knew nobody there, had no connections directly or indirectly with Mandan, or with anybody in North Dakota — he was a perfect stranger to Dakota, both he and all his family.
    On the 6th of May, 1897, without informing anybody where he was going, or that he intended to change his residence — that he intended to leave New York or New Jersey, or anything of the kind — he left secretly, you may say, on his own confession, and went to Mandan; arrived there on Sunday morning, the 9th of May. On the afternoon of the same day he was introduced by a traveling companion to Mr. Voss, who represented Hoggatt & Caruthers in Mandan. He took board at a boarding-house and stopped there a few weeks and then weiit to the Yellowstone Park. He wrote nobody at all that he was at Mandan, dated no letters there, and gave no notice to apybody of his residence there. But while in the Yellowstone Park he wrote to his son that he was taking a trip through that country; and I think there is some evidence from which a jury might infer that he gave it out when he left New York that he was simply going on a pleasure trip.
    In July he came back to New York and was there a week or more. He stopped on the way in Minnesota, at a meeting of the society of the Elks, and then came on to New York and sought and obtained an interview with his son, who was then living with his mother in Jersey City and working in New York City, and in that interview stated that he was going to Germany to get a legacy that had been left to him, and invited his son to go with him, and his son promised to give him an answer on a certain evening — the 30th of July, I think. The son went to the rendezvous on that evening, and his father was not there. He hunted around and found he had been out riding, or something of that kind. At any rate, about that time Mr. Streitwolf went to Mandan, and his son or any other persons, as far as appears, had not the slightest idea that he had been away from home with a view to changing his residence, or adopting a new home, or going into business in some other place. He arrived in Mandan in August. On the 9th of August, three-months from the day he first arrived there, he commenced a suit against his wife for divorce, and took measures to have the papers served upon her in New Jersey.
    Now here is a state of circumstances that did not appear in Felt v. Felt. It did not appear affirmatively there that the original domicile of Felt and.his wife was in New Jersey or New York. It did not appear in that case but that the original domicile of the husband was Utah, where the divorce was granted. But here the original domicile was in New Jersey, and the burden is on the husband to establish the domicile in North Dakota.
    Now, he procured a notice, &'c., to be served on his wife, and about the time he supposed they might be served wrote this long letter dated August 13 th, 1897, to his son, in which he says :
    “I suppose you have thought my action and conduct towards you a little strange in some ways of late. "Well, my dear boy, the time has come when this explains itself.”
    As soon as the papers in the Dakota suit were served on the wife she applied to the chancellor for an injunction against her husband proceeding with that Dakota suit, and the chancellor granted an injunction, which is dated September 8th. It was sent to Mandan to be served — put in the hands of the sheriff for service — and on the day it was so put in the sheriff’s hands Mr. Streitwolf left Mandan and went east to the Mississippi lakes fishing, and was gone, as I recollect the evidence, until a short time before his suit was set for trial, which was an early day in October, as I recollect the evidence, so that there could be no service of the injunction on him personally. It was brought to the knowledge of his counsel, Mr. Voss, and his counsel in New York, and his counsel here; but Mr. Streitwolf swears that he did not know of it until the trial in court. That means that his counsel concealed it from him, if what he has sworn to is true. It cannot be put on any other ground. I should be very much surprised if Mr. Voorhees should state in court that he had not given notice of it to somebody so that it would reach his client.
    Mr. Streitwolf obtained his divorce in North Dakota, and the question is whether he was a bona fide domiciled resident .there for three months, or a reasonable time, before that decree was obtained. I do not think that there is any particular charm in three months or any other length of time. In Utah it required a year’s residence, and it was admitted in Felt v. Felt that Felt was a bona fide domiciled resident of Utah for over a year.
    If there was a bona fide domiciled residence in the State of North Dakota — if Streitwolf went there as any man would go, entirely independent of the question of a desire to get a divorce; if his going there and his adoption of a domicile was thorough and actual — the mere fact that he expected to have the benefit of the laws of the state for a divorce against his wife may not destroy the value of that domicile for present purposes.
    But the fact that he did not go there for that purpose has an effect upon the human mind in determining whether or not, upon all the facts, his residence was bona fide so as to establish a domicile or not, and that is the very point in the case.

    Now, there is no proof that he went into solid, substantial business there. Something was said about his contract with some man who kept a saloon to be a partner or something of that kind. No details were gone into. The landlord, with whom he stayed, swore that Streitwolf’s business was that of soliciting life insurance. He had no business there. I think that whatever business, or whatever hint of business, there may be, is so thin that it makes against rather than for him.
    Immediately after he obtained his divorce he was taken sick. He went to Europe soon after, and then this supplemental bill, to be relieved from the effect of that decree, was filed on the 11th of January, 1898; and the notice of that reached him at a sanitarium in the Austrian Alps, and he came home and attended to his business in New York and New Jersey, and from there again went to North Dakota and stayed there during this last summer.
    I think that while that evidence of subsequent conduct was admitted, it can have very little effect on the case, because it was his policy, when he found that his divorce was attacked, to make the best of it by his subsequent conduct.
    But it does not appear yet that he had any motive to go there, or anybody to see there, except to get this divorce, and it is to be observed that it was necessary for him to get a divorce quickly. It was necessary for him to have this decree in order to defend the action brought by his wife against him in this state. When he found that he could not settle with her, he went to North Dakota post-haste and commenced his suit there, just ninety days from the very Sunday that he arrived there.
    Now, without going into the authorities, and speaking from my recollection of the law as laid down by the most respectable courts, it seems to me that it would be a reproach to the administration of justice to hold that by such a visit under such circumstances he acquired a bona fide domicile in that state, which, as we all know, is notorious as a resort for people seeking divorces.
    Therefore, I hold that the evidence satisfies me that there was no bona fide domicile in North Dakota, and that the obtaining of a divorce on the ground of domicile was a fraud on the court, and entitles the complainant herein to a decree that it shall not constitute a defence to her suit.
    I think this result is clearly within the ruling of the court of errors and appeals in Magowan v. Magowan, reversing this court as reported in 12 Dick. Ch. Rep. 322. There the defendant appeared to the suit.
    It is a serious question whether a service out of the jurisdiction can ever be the ground of a decree of divorce, and the only ground upon which it can safely be put is that of necessity, viz., that the party cannot get his rights without such service. That is the ground upon which I put it in the Felt Case. But according to the Magowan Case, as decided by the court of errors and appeals, as I understand it, if the complainant in this cause, Mrs. Streitwolf, had appeared to the Dakota suit, it would not have prevented her from setting up here that there had been fraud practiced upon the court in the matter of domicile.

      I am quite clear that this'decree cannot prevail, and that conclusion renders it unnecessary to determine the question of a breach of the injunction.
    I think it wqrth while to add one more observation. Upon looking at the North Dakota decree it appears that the plaintiff in that suit, the defendant here, put his case there on two grounds — one extreme cruelty of his wife practiced upon him, and the other on the ground of her adultery. A faint effort was made by a witness who was examined in New Jersey to prove the adultery, and it was that effort which I presume was the cause of the son’s publishing the article in the newspaper which was put in evidence herein ; but the proof failed, and the Dakota decree is based on cruelty of the wife practiced upon the husband. Now, it is to be observed that either the adultery or the cruelty, if proven, was a complete defence to the action brought by the wife against the husband in this state, but the cruelty was not a ground here for an absolute divorce.
    I will advise a decree declaring the North Dakota divorce void, and will take up the further hearing of the cause at such time as may be fixed.

      Mr. Willard P. Voorhees, for the appellant.

      Messrs. Alan M. & Theodore Strong, for the respondent.
   Per Curiam.

Decree unanimously affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh — 13.

For reversal — None.


author: Adams, J.

text:
    August Streitwolf, defendant and appellant, v. Elizabeth Streitwolf, complainant and respondent.
    [Filed July 24th, 1899.]
    1. In a suit brought by a wife for a limited divorce on the ground of extreme cruelty, alimony pendente lite was awarded her. She subsequently applied for additional alimony pendente lite to enable her to meet' the expense for tuition and books at a law school, of her son, then in his twentieth year, who lived with and was chiefly supported by her. No order has been made giving the custody of the son to either parent. The application was granted, against the opposition of the husband, who testified that he thought his son unfitted for the law, and wished him to go into business. — Held, that the.order giving additional alimony pendente lite to enable the wife, against the judgment of her husband, to secure for the son a professional education, should be reversed.
    2. The right of a wife to support pending suit embraces a provision for the suitable maintenance of herself and of children who are dependent on her, including the expense of ordinary education, but will not be extended, against the opposition or without the acquiescence of the husband, to include the cost of the professional training of a grown-up son not in the custody of the wife.
    On appeal from a decree dated November 26th, 1898, advised by Vice-Chancellor Pitney, who delivered the following opinion :
    The suit is by the wife against the husband for divorce from bed and board on the ground of extreme cruelty.
    The bill was filed on the 17th of August, 1896, and some time after' that a petition was filed for alimony pendente lite, which was finally brought to a hearing and heard on the 2d day of November, 1896, with the result that the chancellor ordered the defendant to pay the complainant alimony at the rate of $12.50 per week.
    The parties have only one child, a son, now about nineteen years old. They separated a short time before the filing of the bill, and the son has lived with his mother ever since.
    On the day that the order for alimony pendente lite was made the defendant presented a petition to the chancellor for the custody of the son. That petition was resisted by the wife, with the result that an order was made by the chancellor that the son should be sent to the Hightstown school and that the father should, pay his schooling there. That such order was made was admitted by counsel on both sides. I find nothing in writing among' the papers. The boy went to the Hightstown school and stayed there only a short time before he was expelled • for what reason does not'appear. It is admitted, however, that a year previously he had been expelled from the same school, and the trend of the evidence is to show that he has a wayward and uncontrollable disposition. Ho order was made awarding his custody to the father, and he has ever since lived with his mother.
    Shortly after leaving Hightstown, in the fall of 1896, he obtained employment in New York City as clerlj; in a lawyer’s office, and the proofs tend to show that he was a faithful, diligent and promising clerk.
    In the fall of 1897 an application was made to the chancellor to increase the alimony of the wife sufficiently to enable her to send the boy to a law school in New York which was open at night. This application was met by a decree of divorce granted by a court of Horth Dakota in favor of the husband and against the wife. I can find no record among the papers of this application, but it was so stated by counsel during the present argument, and so admitted. The chancellor, on that second application, requested and substantially ordered, verbally, the father to pay $75 towards the boy’s tuition for that winter, and the father acquiesced in such order and did pay his way at the law school.
    In the meantime the wife filed a supplemental bill, asking that the Dakota decree of divorce be set aside as obtained as the result of a fraud practiced on the court. That cause has just been brought to hearing, and I have advised a decree setting aside that divorce.
    Simultaneous with that hearing and decision another application is made for an increase of the alimony pendente lite, sufficient to pay for the second winter’s tuition at the same law school.

      Now the proof satisfies me that after leaving Hightstown for the last time the boy has been doing well, and that while he •is restive under the control of authority like a schoolmaster, he is not restive under a sort of self-control in connection with employment; and, so far as appears, his conduct in his duties as a law clerk has been entirely satisfactory and quite encouraging, and he seems to have an ambition to study aud become a lawyer and to have conducted himself in a way to indicate that that ambition may bear fruit.
    Laying aside the question of age and taking the matter on its merits, I am decidedly of the opinion that it is a case where the court ought to order alimony to include the expense of the boy’s education in the direction in which he seems to have taken a bent. And the only question is as to his age. Is there any time fixed by the authorities beyond which the court will not order money paid for education against a father? I recollect of no such rule at all. I have not had an opportunity to look into the cases on the subject, and I hoped that counsel would have assisted me in that respect since the matter was stirred on Wednesday last, as requested, but neither counsel has been able to assist me with any case on that subject; and at present I cannot see where the line can be drawn short of legal majority. The boy is making his home with his mother. She is giving him food and raiment. He is studying faithfully and submitting himself to the discipline of the law school. It is apparently the first real success that the boy has made in self-government; and I think that, under all the circumstances, this order ought to be made. I make it with great hesitation as to the power of the court. On the merits I think it ought to be made, and I will therefore make an order that the money be paid. T will put it in such shape as shall please Mr. Voorhees as to seeing that the money is applied to that purpose. If Mr. Voorhees himself will buy that list of books and pay the money to the proper bursar or treasurer of the University Law School he shall have the privilege of doing so, or Mr. Strong-
    Mr. Strong — I would rather leave it with Mr. Voorhees.

      .The Court — So that there will be no kind of reason to believe that it will be diverted.
    Mr. Voorhees — I don’t want to be understood in that way— that it would be diverted by the boy. It is rather the principle in the case. I do not want to attend to it.
    The Court — As general guardian of the rights of the parties, it is my duty to do that, and I will make the order in that shape if you desire it.
    Mr. Voorhees — I would rather not handle it.
    The Court — Then I will have it paid to Mr. Strong, as an officer of the court. The defendant will pay the $100 fee to the law school, and the ’bill for the cost of the law books required, and they must be bought at as low a price as possible.
    The decree appealed from is in the following words: “ This matter being opened to the court by Alan H. & Theodore Strong, of counsel with said complainant, upon due notice to and in the presence of "Willard P. Voorhees, of counsel with said defendant, and it appearing that August Streitwolf, junior, the son of said parties, lives with the said complainant and is supported by her; that he is of the age of nineteen years and is engaged in the study of law and for more than a year last past has attended law lectures at the University of the-City of New York,-and that it is desirable that he should continue so to do; and it further appearing that the tuition fee for said attendance by said August Streitwolf, junior, for the current year is now due to the said university and unpaid, amounting to one hundred dollars, and that certain law books are required to be used by said August Streitwolf, junior, in connection with said lectures, the cost of which is the sum of twenty-nine dollars and seventy-five cents: it is therefore on this twenty-sixth day, of November, in the year eighteen hundred and ninety-eight, ordered that the said defendant pay to the solicitors of the complainant herein by way of additional alimony pendente lite the sum of one hundred and twenty-nine dollars and seventy-five cents, to be applied by said solicitors to the payment of said tuition fee and the purchase of the books mentioned in the affidavit of said August Streitwolf, junior, used upon the hearing of this motion and filed in this cause.’

      Mr. Willard P. Voorhees, for the appellant.

      Messrs. Alan IP. & Theodore Strong, for the respondent.
   The opinion of the court was delivered by

Adams, J.

It will be observed that the decree appealed from awards not permanent alimony, but, in the language of the decree itself, “ additional alimony pendente lite.” A husband .is bound to support his wife, though she is separated from him, unless she is in fault. When in apiparen t good faith she sues him for a divorce or for separation, and sets forth a prima facie case, there is no presumption that she is in fault. She is therefore entitled to alimony pendente lite. Otherwise she will be at her husband’s mercy. But, on the other hand, while the merits of the controversy are yet undetermined, and since it may turn out that the wife is in the wrong, it is reasonable that the award of alimony pending suit should be somewhat strictly limited to the cost of litigation and to the support of the wife and of her dependent children. In Germond v. Germond, 2 Paige 643, Chancellor Walworth said: “As a general rule, to guard against any abuse of the privilege of the wife to obtain a temporary support pending a suit for a divorce or separation, and to prevent the bringing of improper suits for the mere purpose of obtaining a support during a protracted litigation, the temporary alimony must be limited to the actual wants of the wife until the termination of the suit in her favor establishes the fact that she has been abused and is entitled to a more liberal allowance.”

The distinction between alimony pending suit and permanent alimony, and the nature of the husband’s obligation to furnish them, respectively, in proper cases, are well stated by Vice-Chancellor Van Fleet in the following passage extracted from the opinion in Westerfield v. Westerfield, 9 Stew. Eq. 195, 196, 197: “ There can be no doubt that it is -the duty of a husband to support his wife.. This duty flows out of the marriage contract and does not at all depend on the wife’s means or want of means. The husband’s duty is the same in this respect whether his wife has property or not, and it is equally clear that if the husband refuses to perform this duty by abandoning his wife or separating himself from her and refusing or neglecting to,maintain and provide for her, this court may compel him to furnish suitable support and maintenance for her. But the court cannot give such relief, to the wife until the husband has had his day in court and been afforded an opportunity to contest her proofs and submit his own. An application for alimony pendente lite stands now solely on the ground of necessity. Originally, such allowances were made in divorce suits almost as a matter of course. At common law, by the marriage contract, the'husband acquired complete control over all property owned by his wife at the time of the marriage or which she might acquire during coverture. In such a state of affairs, unless the court required the husband to support his wife and to furnish her with the means of prosecuting her suit or defending his, she would be left during the litigation both destitute and defenceless. She was, therefore, in almost all cases, regarded as a privileged suitor, who had a right to call upon her adversary for both support and the means required to carry on the litigation on her part.”

The necessity spoken of by ’Vice-Chancellor Van Fleet in the above passage is the necessity of the wife, arising from her pecuniary inability at common law, a necessity which, as the learned vice-chancellor proceeded to observe, has been much ameliorated by the liberal modern rules as to the capacity of married women to hold property. But there is another sense in which alimony pendente lite “ stands solely on the ground of necessity.” For the reason above stated by Chancellor ’Walworth, it should include only items that are necessary. The word necessary is, indeed, to be taken in a liberal sense. As Vice-Chancellor Pitney happily said, in Alling v. Alling, 7 Dick. Ch. Rep. 92, 96: “The physical ability of the child to earn its bare food and clothing is not the test or gauge in this court of a parent’s duty to support and educate it.” The necessity that is the criterion of validity is not mere physical necessity, but rather social and moral propriety, having regard to the situation of the parties and the fituess of things. Food, shelter and clothing are physical necessities. In an enlightened community the common education of a child is a moral and social necessity. Professional traiuing is not a general necessity, but is a special advantage. Whether a young man shall study a profession is a question usually determined for him by his parents, especially by his father, with some reference to the son’s taste and capacity. It is not well for courts to assume unnecessary responsibility in the critical matter of choosing a profession, as to which even the persons most deeply interested and best qualified to judge are not free from liability to error, or to stand in loco parentis before the locus parentis has been vacated or forfeited by the death, disability or misconduct of the rightful incumbent.

It may be further observed that the courts, in determining the amount of alimony, have had regard to the age and earning capacity of the minor for whose support and education the wife asks an allowance. In Snover v. Snover, 2 Beas. 261, it was directed by Chancellor Green that so much of an award of permanent alimony as was designed for the support of a daughter should cease when she should reach the age of eighteen. In Amos v. Amos, 3 Gr. Ch. 171, Chancellor William Pennington said : “ Where children are grown' up, it is not proper to make an allowance on their account,” having evidently in mind their arrival, not at legal majority, but at a condition of earning capacity. Again, it is to be remembered that the courts are disposed to recognize and enforce proper agreements inter partes, touching the support of a wife. Calame v. Calame, 10 C. E. Gr. 548. Moreover, it may be material to inquire whether the court has awarded to the wife the custody of the minor child who lives with her, and the cost of whose support she asks to have included in her award of alimony. This is so, because, in the case of a grown-up child, the father’s duty to furnish support and the child’s duty to render service are usually reciprocal. Bearing in mind the general considerations above stated, the force and authority of which are evident, it remains to examine the facts of this case and apply the appropriate rule.

The bill was filed by the wife on August 17th, 1896, for a limited divorce on the ground of extreme cruelty. On August 18th, 1896, a petition for alimony pendente lite was filed. On November 2d, 1896, an order was made directing the payment of a counsel fee and alimony at the rate of ¡§12.50 per week. On the same day another order was made, reciting that the defendant had filed his petition, praying for an order awarding the custody of said petitioner’s son, August Streitwolf, Jr., to him during the pendency of the suit, and that it appeared that it would be for the benefit of the infant that he should be put to school, and that at the school he should not be visited by either parent during the pendency of the suit, and that the father had expressed his willingness to defray the expenses of such disposition of the infant, and directing that said August Streitwolf, Jr., be placed in the Peddie Institute, at Hightstown, New Jersey, where he formerly had been at school, and that said petitioner pay the'expenses of removing the said August Streitwolf, Jr., to said Institute, and his expenses there, including board, tuition, suitable clothing and petty cash, and that he should not be visited by either parent while attending school. No order was then made, or has ever been made, awarding the custody óf the sou to either parent. The boy was sent to the Peddie Institute under this order, but remained only a short time. On August 19th, 1897, an answer to the bill was filed, and on September 3d, 1897, a replication was filed. No testi-. mony has been taken to substantiate thé allegations of the bill. On October 7th, 1897, the defendant obtained a fraudulent divorce from his wife, in the State of North Dakota, which, on supplemental bill filed in this suit, has been declared void by the decree of the court of chancery, affirmed by this court. This fraudulent proceeding, reprehensible as it is, throws no light on the merits of the case made by the complainant’s first bill. The fact that the defendant got a fraudulent divorce from his wife, in North Dakota, has no tendency to prove that he treated her with extreme cruelty in New Jersey. The suit is at issue, with no proofs taken on either side, and with no presumption, as to that issue, for or against either party.

In January, 1897, the son, being in his nineteenth year, entered a law office aud began to attend the night sessions of the law school of the University of the City of New York, It is said that an application was made to the chancellor in the fall of 1897 to increase the alimony of the wife sufficiently to enable her to pay the son’s tuition in the law school for the year then beginning. There is no record of such an application, or of any order for such increase of alimony. It does appear that the defendant paid $75 towards his son’s expenses for that year. The proof does not, however, warrant the conclusion that the defendant then agreed or consented to educate his son as a lawyer.

On November 10th, 1898, or thereabouts, the defendant was notified of an application for an order requiring him to pay the sum of $135 for tuition and law books for the law-school year beginning October 1st, 1898. There was no petition — merely a notice founded on an affidavit of August Streitwolf, Jr. The application was not in form for the payment of alimony pendente lite, but was for the payment of the sum above mentioned for tuition and books. The testimony of the father and son was taken before Vice-Chancellor Pitney. It appears from the son’s testimony that he was living with his mother, earning ,$4 per week by work in a law office, and attending the night classes in the law school; that his mother boarded and clqthed him; that his father had given him a suit of clothes and some money, and had further, at some time prior to August, 1896, found a place for him in a business house in New York City, which the son did not keep, as he thought it too hard for him. It appears from the testimony of the father that he is strongly opposed to his son’s attendance on the law school, and that he wants him “ to do something practical.” Pie mentions further details of his getting his son a place in a business house. The order applied for was, in substance, granted. It is from that order that the appeahwas taken. When the order was made the son was in his twentieth year. He is now in his twenty-first year. His class at the law school will graduate in the year 1900.

Erom this recital it appears that the application to the court of chancery was virtually for an order compelling the husband, against his own judgment, by way of supporting his wife pending suit, to make a grown-up son a lawyer and to pay the expense of his professional education. We do not find that the husband had committed himself to this course by his own conduct or that he had become bound to take it by any previous adjudication. For reasons already stated, we think that the order appealed from was an undesirable extension of a power that exists primarily for the protection of the wife. The son’s ambition in the direction of a liberal education is in itself commendable, but upon the facts now before us and at this stage of the suit, the father cannot be forced to gratify that ambition without making an unwise exception to a good rule.

The order is reversed.

For reversal — The Chief-Justice, Van Syckel, Garrison, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Yredenburgh — 11.

For affirmance — Dixon, Lippincott — 2.


text:
    The Franklin Electric Light Company, appellant, v. The Fort Wayne Electric Corporation, respondent.
    [Filed June 19th, 1899.]
    On appeal from an order of the chancellor, whose opinion is reported in Fort Wayne Electric Corporation v. Franklin Electric Light Co., 12 Dick. Ch. Rep. 7.

      Mr. David J. Pancoast, for the appellant.

      Mr. Robert H. McCarter, for the respondent.
   Per Curiam.

The order of the chancellor declaring the defendant corporation insolvent and appointing a receiver is affirmed, for the reasons given in the opinion of the chancellor.

For affirmance — The Chief-Justice, Van Syckel, Dixon, Garrison, Gummere, Collins, Bogert, Nixon, Hendrickson, Adams, Yredenburgh — 11.

For reversal — None.


text:
    Frances Hallenback, complainant and appellant, v. Arabella Rogers et al., defendants and respondents.
    [Filed June 19th, 1899.]
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in Hallenback v. Rogers, 12 Dick. Ch. Rep. 199.

      Mr. Lindley M. Garrison, for the appellant.

      Mr. David J. Pancoast, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, on the opinion of Vice-Chancellor Grey.

For affirmance — The Chief-Justice, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Collins, Bogert, Nixon, Hendrickson, Adams, Yredenburgh — 12.

For reversal — None.


text:
    Harry W. Breckenridge et al., defendants and appellants, v. Delaware, Lackawanna and Western Railroad Company, complainant and respondent.
    [Filed June 19th, 1899.]
    On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Delaware, Lackawanna and Western Railroad Co. v. Breckenridge, 12 Dick. Ch. Rep. 164.

      Mr. Joseph M. Roseberry, for the appellants.

      Mr. Ghauncey G. Parker, for the respondent.
   Per Curiam.

Decree appealed from is affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh — 13.

For reversal — None.


text:
    Catherine A. Salter et al., appellants, v. Stephen D. Ely et al., respondents.
    [Filed March 6th, 1899.]
    On appeal from a decree of the ordinary, whose opinion is reported in Salter v. Fly, 11 Dick. Ch. Rep. 357.

      Mr. Clarence Linn, for the appellants.

      Mr. John J. Ely and Mr. Woodbridge Strong, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given by the ordinary in his opinion.

For affirmance — -The Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Bog-ert, Nixon, Hendrickson, Adams,- Vredenburgh — 14.

For reversal — None.


text:
    Dentacure Company, appellant, v. The New Jersey State Dental Society, respondent.
    [Filed March 6th, 1899.]
    On appeal from an order advised by Vice-Chancellor Stevens, whose opinion is reported in New Jersey State Dental Society v. Dentacure Co., 12 Dick. Ch. Rep. 593.

      Mr. Edward A. Day, for the appellant.

      Mr. Halsey M. Barrett, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh — 14.

For reversal — None.


text:
    Maria F. Waldron, appellant, v. Garetta Bishop, respondent.
    [Filed March 6th, 1899.]
    On appeal from an order of the chancellor, whose opinion is reported in Bishop v. Waldron, 11 Dick. Ch. Rep. 484.

      Mr. John S. Voorhees, for the appellant.

      Mr. Willard P. Voorhees, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given in the opinion of the chancellor.

For affirmance — The Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh — 14.

For reversal — None.


text:
    Rutherford Boiling Springs and Carlstadt Electric Company, appellant, v. Franklin Trust Company, respondent.
    [Filed March 6th, 1899.]
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Franklin Trust Co. v. Rutherford Boiling Springs and Carlstadt Electric Co., 12 Dick. Ch. Rep. 42.

      Mr. Addison Ely, for the appellant.

      Mr. William JET. Gorhin, for the respondent.
   Per Curiam.

Decree appealed from is affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh — 14.

For reversal — None.


text:
    William S. Clawson et al., defendants and appellants, v. Samuel H. Lyon et al., complainants and respondents.
    [Filed March 6th, 1899.]
    On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Lyon v. Clawson, 11 Dick. Ch. Rep. 642.

      Mr. Samuel U. Grey and Mr. Bedell (of the Pennsylvania bar), for the appellants.

      Mr. William T. Hilliard, for the respondents.
   Per Curiam.

The decree of the court of chancery is affirmed, for the reasons given in the court of chancery.

For affirmance—The Chief-Justice, Depue, Van Syckel, Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Booert, Nixon, Hendrickson, Adams, Vredenburgh—14.

For reversal—None.


text:
    Roseland Railway Company, appellant, v. Julius H. Pratt, respondent.

      Mr. Cortlandt Parher, for the appellant.

      Mr. John W. Taylor, for the respondent.
   On appeal from an order advised by Vice-Chancellor Van Fleet granting an injunction restraining the appellant from further constructing its railroad on the land in question in the suit, until it should have made just compensation to the respondent for his estate in the same, whose opinion is reported in Pratt v. Roseland Railway Co., and John J. Van Order, 5 Dick. Ch. Rev. 150.


text:
    Coast Company, appellant, v. Borough of Spring Lake, respondent.
    On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Coast Co. v. Spring Lake, 11 Dick. Ch. Rep. 615.

      Mr. Edwin Robert Walker and Mr. James Buchanan, for the appellant.

      Messrs. Hawkins & Durand and Mr. Richard V. Lindabury, for the respondent.
   Decree affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Depue, Van Syokel, Gummere, Ludlow, Nixon, Hendrickson, Adams — 8.

For reversal — Dixon, Garrison, Lippincott, Bogert — 4.


author: The Chancellor.

text:
    George Gildersleeve, Melvina G. Honeyman and Annie M. Snyder v. William B. Stratton, Frank M. Stratton et al.
    [Filed. January 11th, 1897.]
    Complainants and defendant jointly purchased lands, the price being paid by defendant. It was agreed that defendant should take title in fee, that the land should be plotted and lots sold by defendant until he was repaid, and that then defendant should be vested with title in trust for the joint owners. Complainants stipulated that they would work to facilitate the sale of the lots. — Held, that the agreement was an executed declaration in trust, and not an executory agreement dependent on the performance by complainants of the stipulation to facilitate sales.
    On motion to strike out bill under rule 213, in place of demurrer.
    The bill alleges that six persons, among whom was Frederick H. McNamee, were interested in a tract of land in Bergen county, known as the “ Old Paulison Farm,” which had been conveyed to one of the six, Nathaniel F. Jones, on the 4th of August, 1890; that on the 25th day of the same August, the six persons entered into a writing under their respective hands and seals, which, after reciting that the six had become interested in the purchase of the farm, that it had been conveyed to Jones, that the purchase-money had been advanced by "William D. Stratton, another of the six, and that their several rights and interests should be declared and affirmed, proceeded to an agreement between the parties, in consideration of $1, by each of them to the other paid — first, that the general object for which the farm wa's bought was that it might be divided into lots and thus sold again ; second, that Jones should convey the land to Stratton; third, that until Stratton should be.paid his advances with interest he should hold the land in fee as his individual property; fourth, that under such arrangements as might be made by the six the land should be surveyed, plotted and staked, and streets and avenues should be laid out and opened across the same, the expense whereof, except the expense of surveying, plotting and mapping, which should be primarily borne by Stratton as an advance to be repaid, should be j^aid from the proceeds of sales; fifth, that when, from the proceeds of sales, Stratton should be repaid all his advances with interest, “then,” following the language of the document,
    “the said Stratton shall by proper conveyance become vested with the title to all the said land remaining unsold as trustee for all the parties to this instrument; provided, however, that this instrument shall not be construed upon said land being paid for and the said disbursements being repaid to the said Stratton, as vesting an undivided interest in the fee of said lands in any of the parties hereto, it being declared the purpose of all said parties that the said remaining part of said lands shall become vested in Stratton as trustee for the purpose of selling and conveying title to purchasers. If, however, when the said Stratton becomes so vested with the title of said lands as such trustees, the parties hereto, consistent with the rights and interests of all concerned, can make actual division of the said lands in proportion to this respective rights and interests, then each or all of said parties, the others consenting, may become vested with separate title to the said lands;”
    sixth, that Stratton should not be required, by any party, before he should be fully paid, to account, but that his books of account should be kept open to inspection by the parties-; seventh, that after Stratton should convey the title to himself in trust, the profits from sales should be equally divided between the six parties; eighth, that the five parties other than Stratton, agreed with Stratton that they would, by proper and zealous efforts on their part, endeavor to find a market for the lands and diligently strive to find acceptable purchasers therefor; ninth, that Stratton agreed that, upon being paid as indicated, he would by proper conveyance cause himself to become vested with the titles to the lands remaining unsold as trustee, and, accepting the office of trustee, duly declare a proper trust in himself; tenth, that each of the parties should be consulted as to the general policy of sale and disposition of the lands, but that Stratton should have the power to decide in case of division of opinion until he should be paid, and thereafter his power might be changed, but, after three years from the conveyance to him in trust, he might sell out the land and be relieved of his trust.
    The bill further alleges that Stratton sold a large number of lots and derived from the proceeds of sale thereof sufficient to reimburse him his advances with interest, and then conveyed the remainder of the property to his son Frank, who had knowledge of the document above referred to, who made additional sales, but that there yet remains land undisposed of by the son, the legal title to which stands in his name; also, that Patrick H. McNamee, above referred to, on the 30th of September, 1890, by writing, assigned his interest under the document of the 25th of August, 1890, to George Gildersleeve, who, in turn, assigned “to the heirs of Caleb D. Gildersleeve,” who are the complainants, and that William B. Stratton or his sou Frank have acquired the interest of the others of the six parties to the document of August 25th, 1890.
    The bill seeks a decree which shall hold the Strattons to have been trustees, and Frank Stratton to be trustee, and enforce the trust, and require the Strattons to account.
    By an amendment of the bill, made by consent of the parties-to the suit, after the notice to strike out was served, it is further alleged that after the document of August 25th, 1890, was entered into, and- both before and after he assigned his interest thereunder, McNamee, by proper and zealous efforts on his part, endeavored to find a market for the lands involved and did diligently strive to find acceptable purchasers therefor, and did find a market and purchasers for a large part of the lands to whom conveyances of the same were made by William D. Stratton, and continued such efforts until William D. Stratton was fully paid, and also that William D. Stratton knew of the assignments of the interest of McNamee, and, acquiescing therein, promised and agreed to account to the complainants -for their share of the proceeds of sales of the lands.
    The motion to strike out the bill has been argued as though it related to the bill thus amended.

      Mr. Otto Crouse, for the motion.

      Mr. Allan L. McDermott, contra.

   The Chancellor.

It is urged in support of the motion, first, that the interest of McNamee, under the writing of August 25th, 1890, was not assignable so as to give the complainants a right to invoke the aid of the court in its enforcement, because the agreement involved the performance of personal services by McNamee; and second, because specific performance of an agreement will not be enforced where, as in this case, no mutuality of right or obligation and of remedy exist between the complainants and defendant.

These objections are based upon the assumption that the writing of August, 1890, is an executory agreement upon the performance of which the rights of the parties depend. I do not regard it as a mere covenant for rights and interests to arise in the future. It is professedly a declaration and affirmation of existing rights and interests, added to which are executory agreements touching the repayment of loans and the future realization of the value of those rights.

Six parties had become interested in a scheme to divide the old Paulison farm ” into lots and blocks and sell it at profit. They had secured its conveyance to Jones, one of their number. Another of their number, William D. Stratton, agreed to advance or lend the purchase-money which they were to pay for the farm. At this point the writing in question was made with the purpose, as expressly defined, to declare and affirm the several rights of interests of the six parties to it. Then it proceeded, first, to provide for the repayment of Stratton’s advances with interest, to accomplish which it assented that he should be clothed with the title to the land in fee, ostensibly free from auy trusts, so that he would with the greatest freedom be enabled to make sale of the lots and repay himself, but, notwithstanding he thus took the fee, all the parties to the writing were to participate in the adoption of a scheme, according to which the land should be plotted and streets and avenues upon it should be opened, a matter vital to the success of the undertaking, and likewise all six were to be consulted as to the general policy to be adopted in conducting the contemplated sales, with the restriction, however, that until Stratton should be repaid he should have the power to decide, in case there should be a division of opinion as to the method of selling. He was not to account until he should be repaid, but yet he was to keep books of account which should be open to inspection by the parties. Thus, he was afforded as effectual a security for the return of the money he should advance as the land would afford, and at the same time means of satisfactory supervision of his acts were served for the protection of the rights of those who were ultimately to take. It is perceived that the five parties, other than Stratton, did not renounce their rights, except so far as was necessary to give effect to the scheme of. security which the writing prescribed for the repayment of Stratton’s advances. Subject to the encumbrance created by that scheme, they, with Stratton, in equal shares, were the holders of the equitable title to the land.

The paper further provided that when the repayment should be accomplished Stratton was to convey so as to openly put the title in himself, in a trust which would admit of the continuance of sales and afford each of the six parties his proper share of the property. With the consent of all, when Stratton should be repaid, partition of the remaining land might be made among the six.

I cannot but regard this document as an executed declaration of trust. It purports to be made for valuable consideration, and its recitals and the event of the repayment of Stratton and a surplus of land remaining show that it is founded in valuable pre-existing interests. It is true that the instrument is couched in language which contemplates that no trust was to exist until Stratton should be repaid, and at the same time, and that when he should be repaid a well-defined trust should be made, yet it at the same time recognizes and exactly defines existing rights in all the parties to the instrument. There exists an underlying trust given between those parties.

I have not overlooked the fact that five of the parties agreed with Stratton that they would work to facilitate the sale of the property, and that Stratton in turn agreed that when he was paid he would become vested with the title openly in trust.

The argument in favor of the motion rests upon the supposed effect of such agreements.

I do not understand that the continuance of the lights of McNamee were made dependent upon his services. They were not subjected to forfeiture for his non-performance of them. I think that his agreement to render personal services was a personal undertaking with Stratton merely for the security of Stratton’s .repayment. That such was the contemplation of the parties to the agreement is made conspicuous by the provisions that the agreement for personal service was between Stratton alone and the other five together, that when Stratton should be repaid he should openly declare the trust, and that then there might be a partition and Stratton might be deposed from the supreme control of subsequent sale.

It appears to me, also, that the same construction of the agreement is applicable in answer to the argument as to lack of mutuality in remedy. The agreement for personal services was with Stratton alone, having for its object the security of his repayment. He did not stipulate for a forfeiture of rights as a penalty for the non-performance of that service. Irrespective of the services, he holds as trustee, and though he may not be able to compel the performance of the services he cannot set such inability up to defeat the execution of his duty as trustee.

But this question of mutuality does not arise, for the bill alleges that Stratton has been repaid, and the amendment of the bill shows that when the bill was filed and enforcement of the trust was asked, McNamee had personally performed the services which the agreement required.-

I will deny the motion.

Afterwards the bill of complaint-was amended and answers thereto were filed, and the cause came on to be heard on the pleadings and proofs, whereupon a decree was made on the advice of Vice-Chancellor Stevens, dated January 13th, 1898, who filed his conclusions as follows:

I am so clear about this case that I do not think any benefit will arise from delaying my decision of it. The main question has already been decided. - The chancellor has construed the agreement, and I must take his construction of it to be the law of .this case. I may be permitted to say, however, that I ray-self entirely agree with the opinion that the stipulations contained in the paragraph at the end of the fourth clause of the agreement, if unperformed by any of the parties mentioned in it, causes no forfeiture of their interests. If there is a breach of this clause of the contract it may give rise to an action for damages, and possibly such damages as might be assessed in consequence of any breach would have to be deducted from the share of Mr. McNamee, but that is the utmost extent to which, as it seems to me, it is possible to go so far as the construction of the agreement is concerned. Equity leans against forfeiture — gives compensation in lieu of forfeiture, if it can. In this case there is absolutely no clause declaring that a forfeiture shall result from the non-performance of any term of this agreement. It might as well be contended that Mr. Stratton would forfeit his interest — all his interest in the property — if he had failed to perform any term of this agreement, and this would be absurd. I have no' doubt, therefore, about the propriety of the view taken by the chancellor, and if I had I would be bound by his opinion.

Assuming this opinion to be correct, the-case is entirely free from doubt.

[Here follows a discussion of the evidence.]


author: Emery, V. C.

text:
    John Illingworth v. William S. DeMott et al.
    [Filed January 3d, 1900.]
    1. Complainant purchased stock through a broker, knowing that he was acting for the seller, and would receive §500 as commission. Complainant paid him §50 after the transaction v'as closed, and told him he would like to purchase more stock, but made no arrangement as to commissions. Subsequently complainant purchased, through the broker, more of the stock, the broker securing his commissions from the seller ; but after the sale complainant gave him an option, in writing, to sell a certain number of shares, and to share equally with him the profit over a certain amount. The broker subsequently made an agreement with another broker, who controlled several shares of the stock, to sell the same to complainant, receiving as his commissions an equal share with the seller of whatever excess they could obtain over a fixed price. In making this trade with complainant the former option, now valuanle, was given up as an inducement to complainant to purchase. Complainant refused to pay the broker any commission, saying his commission must come from the seller. — Held, that no agency existed between either broker and complainant, and hence he could not recover any portion of the profits secretly derived by them in the transaction.
    2. Where a purchaser of stocks ratifies the sale, he cannot recover from the seller’s broker profits made by him, though part of such profits were made by tampering with the purchaser’s broker.
    3. Though the conduct of a stock broker, acting as the agent of seller’s broker, in undertaking to act as the .agent of the purchaser without informing him as to his agency for the seller and its terms, is a fraud, which might avoid the entire transaction at the option of the purchaser, still it will not entitle him to recover, as principal, from the agent profits secretly received by him.
    Heard on bill, answer, replication and proofs.
    The equity upon which complainant bases his claim to decree in this case is the right of a principal to compel his agent to account for profits secretly derived by the agent in the course of the transaction of the business for the principal.
    Complainant alleges in his bill the joint application of defendants to act for him in the purchase of stock of an incorporated company and an agreement on his part for the purchase, relying upon their joint representations as to the lowest price at which purchase could be made, which representations are claimed to have been false. He also alleges in the bill that Davett, one of the two defendants, was acting as his special agent in making the purchase under an agreement for compensation for his services. The defendants, DeMott and Davett, who answer separately, each deny any agency for complainant, joint or several, and allege substantially that in the transaction in question — a sale of Prudential insurance stock to the complainant —the defendant Davett was acting not as complainant’s agent to purchase, but as the agent to sell for the defendant DeMott, who had control of the sale of the stock in question under an agreement or option given to him by the owner, a Mr. Blanchard, to sell to DeMott or his nominee at a fixed net price — $80,000. The answers of both defendants admit that previous to the sale to complainant an agreement was made between DeMott and Davett that any profit made on a sale should be equally divided between DeMott, the defendant Davett and a brother of -the defendant Julius Davett, a Mr. Emil Davett, who is not a party to the suit. The sale to complainant was effected for $80,000 in cash and one hundred shares of Atha & Illingworth Company stock, the latter shares representing the profit, which, under the agreement, was to be equally divided between the three persons named. Blanchard received the $80,000 in cash directly from the complainant, who delivered the Atha & Illingworth stock to DeMott, supposing, as the bill alleges, that DeMott received it to deliver to Blanchard. Complainant discovering, as he alleges, a few days afterwards, that Blanchard’s stock was for sale for $80,000 and that the Atha & Illingworth stock was the profit on the transaction, filed his bill to enjoin DeMott, who still held the stock, from transferring it and for its delivery to him as the secret profits of his agents. There is no prayer in the bill that the sale of the stock be set aside, nor does complainant offer to return the stock purchased. The Atha & Illingworth stock has been sold pending the suit under order of the court, made after hearing the parties, and the proceeds paid into court to abide decree in the suit.
    The issue between the parties, as made up on the record, is one of the existence of an agency of the defendants, or either of them, for the complainant in the purchase, and this question of fact was the question argued at the hearing by counsel, the general rule that an agent must account to his principal for secret profits not being disputed.
    The facts of the case upon which the question of agency depends require to be stated somewhat at length, as the case is not one of simple employment of an agent to purchase but discloses other circumstances which may affect the right of the complainant to recover any share of the profits of the transaction, even if an agency of some kind for the complainant on the part of either of the defendants be established. And inasmuch as the complainant, in order to establish agency as to Davett, one of the defendants, relies upon the transactions between Davett and himself previous to the purchase in question, the statement of facts must include the entire previous relation of the parties so far as disclosed by the evidence.
    [Here follows a statement of the facts.]

      Mr. Frank E. Bradner, for the complainant.

      Mr. James E. Sowell, for the defendants.
   Emery, V. C.

(after stating the issues and evidence).

In reference to the question of joint agency of DeMott and Davett, which is raised on the pleadings, it is entirely clear that DeMott in this transaction was not the agent of complainant to purchase the stock for him, and further that complainant understood throughout the negotiations that DeMott so far from being his agent was interested adversely to him, and controlled or claimed to control the stock as seller. If DeMott, as seller, tampered with an agent whom complainant had previously employed to buy, it might afford ground as against DeMott for rescinding the contract of sale, but so long as complainant stands on the sale and ratifies it, there can be no right on his part as purchaser to recover from the seller as money belonging to the purchaser the profits made by the seller, even if part of the seller’s profits was made by tampering with complainant’s agent. To allow such recovery while the purchaser holds the stock and thus affirms the sale, would be to make another bargain for the parties to the sale as a penalty for fraud in the sale. On this bill, therefore, there is no right to recover from DeMott any portion of the profits he received, upon the theory that he was an agent of the complainant, to whose service in the purchase of the stock complainant was entitled. ISTor do I think that as against Davett the complainant has any right to recover the profits which Davett has made in the transaction.

In the first place, the conclusion to be drawn from consideration of the entire evidence bearing upon the dealings between complainant and defendant, in relation to this transaction, is that Davett, in the negotiations, was not an agent or broker of complainant to be paid by him, but was an under-broker for the seller or the seller’s broker (DeMott), who was to be compensated by the latter, and that complainant so understood the relation between himself and Davett. Complainant during the negotiations did commission Davett to communicate to DeMott his offers to purchase and the terms, but this must, under the evidence, be considered not as an original employment creating Davett complainant’s agent to purchase, but as the reply or answer made by the complainant through Davett to the offer to sell on other terms previously communicated to complainant by Davett as the agent of DeMott or his principal.

In the second place, the evidence shows that Davett, before any communication with the complainant which could be considered as employing Davett to act for him to any extent or for any purpose as his agent in this transaction, had accepted an employment from DeMott to sell the stock. A broker is primarily the agent of the person who. first employs him (Marsh v. Buchan, 1 Dick. Ch. Rep. 595, 596, 604 (Errors and Appeals, 1890); Story Ag. 31; 4 Am. & Eng. Encycl. L. (2d ed.) 966), and as between DeMott and himself, this prior agency for DeMott, the seller, continued to the close of the transaction. If while so employed as seller’s agent, under an agreement with him for compensation which virtually gave Davett and not DeMott, his principal, control of the price, Davett undertook subsequently to be also the purchaser’s agent to purchase, without fully informing the purchaser as to his agency for the seller and its terms, the acceptance of such subsequent employment without such notice was a fraud, which might avoid the entire transaction if the purchaser chose to revoke and the seller insisted on the sale after notice of his agent’s fraud.

But the subsequent dishonest employment for the purchaser could not, as it seems to me, be either a legal or equitable basis for declaring the prior legal agency for the-seller revoked, and the subsequent dishonest agency established as the legal agency. To hold that the purchaser, defrauded by dishonesty of this kind in a person who assumed to act as his agent, can recover the profits fraudulently received as money which belongs to him as principal, is to affirm as legal an agency which in its origin was illegal and dishonest. The remedy of the principal in such case is a rescission of the contract for fraud, or an action to recover the loss he has sustained by reason of the fraud. But he cannot recover as money belonging to him in his character as principal the profits received by an agent who was the seller’s agent, and afterwards fraudulently assumed to act as his agent. The case is not one where an agent having been first employed by the purchaser makes secret profits under a subsequent agreement with the seller or his broker. In such case all the illicit profits which he makes while under the first and legal employment, in the course of that employment, belong to the employer under the rule settled both at law and in equity.

In the third place, I think that while complainant in concluding the purchase relied on Davett’s assertion that DeMott, or the person for whom DeMott acted as selling broker, ultimately controlled the *price, and was misled both by Davett’s. representations and actions, as to Davett himself being the person who controlled the price, yet the entire evidence shows, as I conclude, that even if there was an agency to some extent assumed by Davett for the complainant in the transaction, the purchase as between complainant and Davett was upon the basis that complainant was not expected to pay Davett any commission or-compensation for his services, but that Davett was to be compensated by DeMott. Illingworth dealt for himself in relation to fixing the price, and himself received from Davett, as part of the consideration to him on the purchase, the release of an option Davett held against him, which both parties then considered worth $2,500. In the absence of sufficient explanation, the bargaining as to price by complainant, on the basis of Davett’s giving him something, would seem to be conclusive that the relations of the-parties at that time were adverse and not confidential. Unless Davett was to receive something from DeMott to compensate him for this surrender, there would seem to be no adequate reason or explanation of the surrender. And in reference to this surrender, the deception or fraud, if any was practiced on complainant, was in Davett’s misleading him as to the amount he was to receive from DeMott as a compensation, and as to Davett’s own control, over the price, by his statements and conduct before the bargain was concluded, and by Davett’s application to complainant subsequent to the bargain (which, when carried out, was worth over $2,000 to him), to give him $500 or $1,000 for getting complainant the chance to purchase. If this be the correct view of the evidence, and complainant was not to compensate Davett for any services, but Davett was to receive his compensation from the other side, then the rule entitling the principal to recover the compensation so received, as being secret or illicit profits, does not apply, and the fact that the compensation to Davett was greater than complainant expected does not make any part of the compensation complainant’s money.

In addition to the above reasons, there is another obstacle to complainant’s recovery, on the basis of agency, of the amount received by Davett. The evidence shows that on the evening of the 15th of December complainant received from Mr. Graham the information as to the market price of the Blanchard stock, which led him to believe or suspect that he had been defrauded, and the weight of the evidence shows, also, I think, that complainant went to Davett’s office on the following morning, December 16th, and procured the surrender of the old option without complaining of the supposed fraud, and that this complaint was not made until the following day, December 17th. Under these circumstances, the complainant, if entitled to any relief against Davett, would be required to restore or re-instate the surrendered option as an equitable condition, and it is a serious question whether the surrender of the option and acceptance of this benefit from Davett, and giving a new option, after the information from Mr. Graham, does not bar any relief on the basis of agency. But, without deciding the case upon this point, I conclude, upon the whole evidence as to the transactions and relations' between Davett and complainant up' to the time of the completion of the sale, that there is no right to recover from Julius Davett any portion of these profits which DeMott and the Davetts divided upon the sale of- the stock to complainant, upon the claim that Davett was complainant’s agent. Any.right of recovery which complainant may have; against either DeMott or Davett must, as it seems to me under the facts proved, be based not on the affirmance of the sale and the existence of an agency for complainant, in which complainant was wholly entitled to Davett’s services in the sale and the profits received by him, but must rest upon the basis of fraud and misrepresentation in procuring the sale, entitling complainant either to a rescission of the sale, as against DeMott.and Davett, or an action for damages. The complainant’s bill for an accounting by either DeMott or Davett, as his agents, must therefore be dismissed.


text:
    Oscar Goeger v. Anna Goeger.
    [Submitted. June 27th, 1899.
    Decided December 1st, 1899
    Filed January 4th, 1900.]
    Proof by the wife of her husband’s forgiveness in words, his promise to receive her back to his home, and the conveyance of property to her while the question of her return was pending, for the purpose of showing his good faith, were not sufficient to show condonation of adultery where not followed by acts actually re-instating her as wife. As to the charge of adultery alleged in the cross-bill, the facts established by the evidence held insufficient to show the husband’s adultery.
    Heard on bill, answer and cross-bill, replication and proofs.

      Mr. Henry Hahn and Mr. Abner Kaliseh, for the complainant.

      Messrs. Johnson & German, for the defendant.
   Emery, V. C.

The bill in this case is filed by the husband, charging his wife with adultery, committed with one Scheuplein in August, 1896, at Greenwood Lake. The answer of the wife denies the charge of the bill and sets up also the defence of condonation. A cross-bill, filed with the answer, charges the husband with adultery with a woman named Siebler in July, 1895, and asks divorce. The proofs as to the defendant’s adultery with Scheuplein, as charged, are so positive and derived from so many sources as to compel belief in the wife’s guilt and to overcome entirely her denials, which constitute substantially the only evidence in her behalf in relation to the charge. The paramour, a young man of eighteen, many years her junior, proves the guilty act, and he is fully corroborated by the wife’s conduct and confessions to-the husband and others subsequent to the alleged commission of the crime, and by her own letters written to her husband after he had expelled her from their home upon her confession of guilt. Some of these letters refer to the commission of an offence or sin against her husband and children, and her explanation of these expressions, viz., that they referred merely to her allowing the young man to kiss her in her room one night, is altogether unsatisfactory.

I have read over and carefully considered again all the evidence on this point, and the arguments and briefs of counsel, and am confirmed in the decided impressions made upon me by the evidence at the hearing that the complainant has satisfactorily proved the adultery charged in the bill.

In reference to the defence of condonation the situation of the case on the proofs, in my judgment, is that the wife, upon whom the burden of the proof of this defence rests, has proved by the weight of evidence a forgiveness in words and a promise by the husband to receive her back to his home. The husband denies this, but upon this point the wife is corroborated by the evidence of a witness who attended the interviews in the wife’s counsel’s office at the request of the husband, and who subsequently, at the husband’s request, became the intermediary in a conveyance of real estate (of little or no value, as it afterwards turned out), which was made by the husband to the wife while the question of return was pending, and for the purpose of assuring her of his good faith. These promises of the husband to take his wife-back were first made about April, 1897, and were repeated up to. June of that year, but were not carried out, and the wife, in February, 1898, apparently abandoned hope of their being carried out, and returned to her native country in Europe, and the husband then gave her the sum of $400 and discontinued the weekly payments for her support which he had been making since he expelled her from home. The important question which arises on this state of facts is whether a forgiveness by words merely and a promise to re-instate, or by words followed by acts, such as the conveyance of the property in connection with such promise, but not followed up by any acts or conduct which actually re-instated the offender in the condition she was before the transgression, show a sufficient condonation. The question is a new one in this state, for the expression of Vice-Chancellor Van Fleet, in Schackleton v. Schackleton, 3 Dick. Ch. Rep. 364, 367, which is relied on as an authority to show that condonation may be by words alone, cannot, in my judgment, be taken as intended to settle the present question which was not involved in the decision of that case. If the question is treated as one to be settled on principle, independent of authority, it would seem that inasmuch as condonation, where it has once taken place, entitles the offender thereafter to all marital rights, such vital and far-reaching consequence should not be fastened upon the injured husbaud unless he has in fact re-instated the guilty woman as his wife. The language of Sir Cresswell, in Keats v. Keats, 28 L. J. (Prob. & M.) 59; S. C., 5 Jur. (N. S.) 176 (1859), which was approved by the court of appeal in Bernstein v. Bernstein, Prob. Div. 292, 312 (1893), as an accurate and clear statement of the law as to condonation, defines its effects “ as a blotting out of the offence so as to restore the offending party to the position which he or she occupied before the offence was committed.” Forgiveness of the offence, whether it be evidenced by words or acts, is not necessarily legal condonation, which requires the forgiveness to be followed in fact by a reconciliation, in which the wife is re-instated to such conjugal cohabitation or connubial intercourse, as may be adapted to the circumstances of the parties. An inclination or even an intention to condone is not sufficient if not followed by an actual re-instatement. This is the rule stated in Keats v. Keats, 5 Jur. (N. S.) 176, 178 (1859), and seems to me to be the only rule, which is just alike to the injured as well as the offending party in relation to the condonation of this offence. The cases which have been referred to as establishing the rule that forgiveness by words alone, not followed by acts or conduct from which a re-instatement of the guilty party to marital rights can be inferred, do not, so far as I have been able to examine them, support this contention. Upon the issue of condonation, I conclude, therefore, that the wife having proved only an inclination or intention to condone, which was not fully carried out and was not followed by her actual re-instatement as a wife, the offence committed has not been legally forgiven or condoned.

The last question arises on the charge of the adultery of the husband, committed, as the cross-bill alleges, with a woman named Siebler, in the spring of T895. This woman, produced as a witness by the wife, swears to the husband’s commission of the crime with her twice in the city of Newark at two different houses. Complainant, under oath, positively denies the charges. The account which the woman gave of the circumstances of the solicitation and yielding, and of her previous life, while they may not justify a conclusion that she is a common prostitute, show that she is not a woman of virtue or good character. The credibility of her statement under oath is shaken by the fact that she also charged another person with being the father of the illegitimate child which she now swears was the child of complainant. In view of complainant’s denial, her uncorroborated testimony would not be a safe or proper basis for a decree of divorce. It is insisted that her testimony is sufficiently corroborated; but the facts and circumstances relied on as corroborating her proof of complainant’s guilt are not facts or circumstances which themselves tend to prove that the crime she swears to, viz., the adultery with her, was in fact committed, but have no further extent or scope than to show a probability that she is telling the truth. The facts mainly relied on as corroborating proof of the husbaud’s guilt are his absence from home at night, the fact that he had previously suffered from a venereal disease (contracted, as he told his physician, while in the army), the visit of Siebler and of a friend in her behalf to complainant at his place of business to appeal for aid, and by the complainant’s false account of the extent of his acquaintance with the woman. These facts and circumstances, if established, afford some basis for urging a probability that the woman is telling the truth in swearing that the defendant, committed adultery, but none of them corroborate her statements as to the commission of the crime charged. No person has been produced who saw the parties together or separately at either of the places named or at any other place, or saw any act or conduct of either of the parties which pointed in any way to the commission of the act charged.

Giving them all due weight in arriving at a conclusion, the circumstances and evidence relied on as to the probability of the truth of the witness’ account, do not, in my judgment, afford sufficient corroboration of her evidence as to the charge, and in view of the complainant’s denial of the charge upon his oath, it must be held that the charge is not proved and the cross-bill must be dismissed.