Volume 59 — New Jersey Equity Reports

On motion to strike out bill under rule 213, in place of demurrer.

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.

<p>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.</p>

On final hearing. This bill is filed to get a construction of the residuary clause in the will of Josiah Sehenck.

<p>Oil a bill filed to enforce a vendor’s lien.</p>

On. application for injunction. It appears that the complainant is a beneficial society with several organizations, the chief of which is the state council, and with a constitution which .establishes the supreme lawmaking power for such an association in. a general convention. The subordinate organization of the order are councils, in each state, district councils and branches.

In March, 1894, the owners of a building known as the Star Hall building, on the corner of Market street and West Broadway, in the city of Salem, filed a bill to enjoin the present defendant, Caroline W. Yan Meter, the owner of an adjoining property, from erecting any structure which would obstruct the ingress of light and air through a window in the Star building.

On final hearing. The complainant has the right to draw water from a pipe running from a spring on the land of Mr. Clark. He brings this suit to restrain the defendants from infringing such right. The spring from which the water flows, was, in 1852, upon the property of Abraham and Isaac Wildrick, about a mile from the tavern where they lived. At that time, about fifty yards from the tavern, on the same side of the public road, lived Mr. Blair.

On final hearing. This bill is filed to recover two legacies. Joseph J. Ely left in his will $100 to each of his grandchildren, including Joseph J. Ely, Jr., and Andrew J. Ely. These legatees have assigned their interest in the legacies to William Warwick, the complainant, who now sues the executors to recover the legacies, with interest thereon, from a period beginning from one year after testator’s death.

The bill of the complainant sets out that it is a manufacturer of both window glass and hollow ware; that on March 16th,-1899, it received a letter from Dennis A. Hayes, president of the Glass Bottle Blowers’ Association of the United States and Canada, stating that the non-union glass blowers of South Jersey had organized aud agreed that they should ask their employers to concede them such wages and privileges as had been agreed upon between the union manufacturers aud…

<p>On application for receiver.</p>

<p>1. On an application to define the mode of crossing a steam railroad by a ■trolley road, a map filed by the petitioner, showing that the route of a trolley iroad crosses the railroad at the point where the mode of crossing is to be defined, is sufficient, though it does not exhibit any indication of a crossing.</p> <p>2. It will be presumed, in the absence of proof, that an instrument bearing the seal of a corporation, and the signature of its secretary and solicitor, was • signed and sealed by proper authority.</p> <p>3. The adoption of a resolution by the board of directors of a corporation, reciting that an act of its secretary and solicitor was done with their aequi- - escence, and that they ratified it, is equivalent to an original authorization.</p> <p>4. Under Pamph. L. 1853 p. 368, requiring a railroad company to construct bridges or passages over or under its railroad where any “roads shall cross •the same and to alter and grade the said roads so that carriages, horses and • cattle, passing and repassing, shall not be impeded thereby,” the railroad has the right to cross a highway at grade.</p> <p>5. On an application to define the mode of crossing a railroad by a trolley line, the question is whether, taking into account the danger of collision, and facility and economy with which it may be avoided by adopting a crossing other than at grade, the latter method should be required.</p>

<p>On final hearing.</p>

On hearing. This bill is filed to foreclose a mortgage given to secure the payment of several bonds, two of which are held by the complainant. Held: to John C. Welsh. Welsh assigned them to the complainant, who is the surviving executor of John K. Swayze. Hannah Banghart, the holder of the dower bond, is dead, and an administrator ad pros, has been appointed to represent her in this suit.

The general scope of the bill in this case was set out in the former decision rendered upon a demurrer to that pleading. The facts appearing upon the trial were these: Matthew Flemming, in 1895, was engaged in building thirty houses at Collingswood, N. J., upon land the title to which was in the name of one Connolly, but as trustee for Flemming. Flemming became financially embarrassed, left the state, and an attachment was issued against his property.

On motion to strike out a bill and part of an answer. This suit was brought by the complainant, who has a judgment against John Táylor, under the eighty-eighth section of the Chancery act, to reach certain property named or things in action of the defendant, and have the same reduced to possession and delivered to a receiver, in order that the complainant’s judgment may be satisfied.

<p>1. Where defendant held bonds of a foreign corporation as security for a-loan, under an agreement that they should be surrendered as the corporation might sell them, and that the proceeds of the sale should be applied in liquidation of the debt, and plaintiff was induced to purchase some of the bonds by defendant’s clerk, by false representations that they were first mortgage bonds, defendant was not liable for the loss sustained, since the clerk, in such transaction, acted for the corporation and not as defendant’s agent. -</p> <p>2. A transferee of bonds cannot rescind the sale on the ground that it was induced by fraudulent representations and recover the amount paid, in equity, since the recovery of money paid under false representations is not within the scope of modern equity jurisdiction.</p> <p>3. Where a trust company held a mortgage to secure bonds issued by a foreign corporation, by the terms of which the bonds were to be delivered to the corporation and to the holders of other bonds, in exchange for bonds previously issued, and the trust company was not required to sell the bonds, it was not a trustee for the bondholders, and hence was not liable for false representations of its clerk in the sale of part of the bonds pledged to secure a loan to the corporation while such clerk was acting as agent of the corporation.</p> <p>4. Where a trust deed given to a foreign trust company to secure bonds of a foreign corporation required the trust company -to certify the bonds and deliver them to the corporation on resolutions showing expenditure of certain sums in improvements, and the trust. company certified and delivered the "bonds in the state of its domicile without the improvements being made, the •courts of New Jersey had no jurisdiction of a suit by a purchaser of the bonds in that state from an agent of the corporation against the trust company for •such wrongful certification and delivery.</p>

<p>A husband, who lived apart from his wife in the same village, made his-wife a regular monthly allowance. He provided her with fuel and a newspaper. He took her out riding and visited her when she was, sick. The wife, however, without any just cause, refused to live with him, one of her reasons-being that she thought him unfaithful, but without ground. — Held, that the-husband was, under the circumstances, entitled to a decree of divorce on the-ground of the wife’s desertion.</p>

<p>On final hearing.</p>

<p>On final hearing.</p>

<p>On final hearing.</p>

<p>On pleadings and proofs.</p>

<p>1. A testator’s personal representatives are necessary parties to a suit to subject land to the payment of a legacy.</p> <p>2. The death of the executor does not justify a failure to make the personal representative a party, as an administrator with the will annexed may be appointed.</p> <p>3. A will bequeathing the residue of a testator’s estate, “ not expended in satisfying” a previous bequest, does not enable the previous legatee to enforce payment of his legacy from land acquired by the residuary legatee while there are personal assets applicable to the payment thereof.</p> <p>4. That an executor directed the removal of the bodies of testator’s three brothers to a distant cemetery without proof of the expense thereof is insufficient to show an insufficiency of personal assets to pay a legacy of §1,000, where the executor had §1,661 on hand after payment of funeral expenses and costs of administration.</p> <p>5. A presumption of a payment of a legacy arises after the expiration of twenty years from the time of the accrual of a right to it.</p> <p>6. In a suit by a church to enforce the payment of a legacy of §1,000 out of land twenty-eight years after testator’s death, evidence by some of the officers of the church of ignorance of the legacy held insufficient to preclude the presumption of payment arising from lapse of time.</p> <p>7. The fact that a legatee was ignorant of the existence of the legacy will not preclude the presumption of payment arising from a lapse of twenty years, as against a purchaser, where the executor had ample personal assets to pay the legacy and the purchaser did not know that the assets were not applied in the payment of the legacy.</p>

<p>1. A motion to strike out allegations of an answer in equity on the ground that the matter set-up does not disclose any equitable defence, is a mere demurrer, and hence erroneous, under Chancery rule 213, authorizing adjudication of objections to any pleading on motion without demurrer.</p> <p>2. Under rule 213,. authorizing adjudication of objections to pleadings in equity on motion, a motion to strike out parts of answer for insufficiency cannot be sustained where the motion does not allege the particular defects objected to.</p>

<p>1. A legacy given to discharge an obligation will not lapse by the legatee’s death prior to that of testator.</p> <p>2. A legacy declared to be “for value received” will be presumed to have been given to discharge an obligation so as to preclude a lapse by the legatee’s dying before the testator, in the absence of evidence to the contrary.</p>

<p>On final hearing.</p>

On bill, answer and offer of testimony, &c. The complainant was the brother of Meribah D. Kempton and Annie B. Kempton, his two maiden sisters. In 1894 Meribah died intestate, leaving the complainant and Annie her only heirs and next of kin, to whom all her property descended in equal shares.

On bill, answer and proofs. The complainant files this bill against James Mooney, the ■assignee of a contract for the sale of two lots of land in Stockton township, in Camden county, to compel specific performance of •the contract, by a decree that' the defendant accept 'a deed and pay the balance of the purchase-money, and that he be restrained from prosecuting his suit to recover the portion which he has .already paid.

On bill, answer and proofs. The bill in this ease is filed by Lewis F. Hammell, of Phila-delphia, the son of Elizabeth A. Hammell, deceased, who departed this life April 8th, 1898, at the age of eighty-three, testate, by a will dated the 10th day of January, 1894.

On bill, answer and proofs. This bill is filed by the complainant, praying that an account may be taken of the collection of certain promissory notes of the complainant, the proceeds whereof the complainant alleges came to the hands- of the defendant. The complainant, the owner of the notes, placed them in the hands of Philadelphia attorneys, who collected several of them and- made two separate remittances to the defendant, as general counsel for the complainant.

Oil bill for divorce for desertion, answer and proofs. The complainant in this bill states his marriage with the defendant on August 16th, 1876 ; his residence at Hilltop, Camden county, New Jersey, since August 1st, 1883, and that the defendant deserted him there on May 1st, 1895, since which date she has not returned to his- residence, and he prays a decree for absolute divorce.

On cross-bill, answer and proofs.. This cause has now come to a hearing on the amended cross-bill of Isaac Copper, and the answer thereto of Charles I. Wooster as defendant.

<p>Heard on the pleadings and evidence.</p>

On bill for injunction and relief. This cause came first before the court on February 8th, 1897, on a motion for an injunction to prevent the carrying out of a contract dated January 6th, 1897, entered into between the several defendants, corporations and individuals^ which injunction was refused February 12th, 1897, for reasons stated in Meredith v. Zinc Co., 10 Dick. Ch. Rep. 211.

On final hearing on bill, answer and proofs. Held: on the 27th of May, 1898, that the paper was entitled to probate as the last will and testament of Charles H. Fahy; and thereafter, on the 25th of July, the two persons whose names are signed to the document, namely, Valentine Burke and Cornelius McCue, each made a separate affidavit, which is annexed to the will, in the usual form,…

<p>Heard ou bill, answer and proofs.</p>

Heard on pleadings and proofs in open court. The complainant is one of nine children who are the heirs-at-law of Hendrick Voorhees, late of the county of Monmouth, who died on the 29th of October, 1896, intestate. The defendant George Bailey is one of the administrators of said deceased, •and the other eight defendants are the brothers and sisters of the •complainant and co-heirs-at-law of said deceased, and one of them, Nelson T. Voorhees, is co-administrator with Bailey.

<p>A printed blank deed for the conveyance of single lots contained the provision “ that the lot hereby conveyed is hot to be subdivided, and that no more than one residence is to be erected upon the same.” The owner of four adjoining lots conveyed two in one deed, and the grantee treated them as one lot and built a single dwelling. Afterwards the owner conveyed to him the other two, and inserted the letter “ s ” in the blank space after the word “ lot.” The grantor still owned a large number of lots in the vicinity. — Held, that he could enjoin the grantee from building two houses on the two lots last conveyed.</p>

On bill of review. The defendant herein, Alonzo-Clayton, filed his petition for divorce against his wife, Lizzie Clayton, the complainant herein, on April 9th, 1897, charging her with adultery. She answered, denying the adultery, and the cause was brought to trial before a vice-chancellor on the 6th of July, 1897.

On final hearing on pleadings and proofs. The bill is filed by the executors under a will, against the devisees under a residuary clause thereof and a posthumous child of the testator, to determine the rights of the respective parties in a piece of valuable land situate in Morristown, New Jersey, of which the testator died seized.

Heard upon pleadings and proofs in open court, and the written arguments of counsel. The suit is in the nature of an interpleader. The holder of the fund in dispute is the defendant the Supreme Council of the Royal Arcanum; the contestants are the complainant, Charles F. Tepper, on the one side, and his five half-brothers and sisters, Anna Worth (formally Plondrick), Antoni Sieburg, Wilhelmina ■ Ranges, August Zuber and Wilhelm Zuber, on the other side.

Heard on bill, answer and proofs. The suit is in the nature of an interpleader, brought by the complainant, executor and trustee of Thomas Johnson,'deceased, custodian of a fund of $2,000, to determine which of two claimants is entitled to it.

Heard on petition, answer and proofs. The petitioner, Edward Sr Campbell, is the receiver appointed by this court of the Middlesex County Bank, an insolvent corporation, and as such advertised for sale, at public auction, on the 23d of September, 1899, a piece of real estate belonging to said bank, in the city of Perth Amboy.

On bill and demurrer. This suit is against Louis Yogel, John R. White and Catherine White, his wife. Catherine White has filed a demurrer to the bill. The main purpose of the bill is to get an accounting from Louis Yogel and John R. White, who were partners with the complainant in the meat business in Princeton, in this county.

<p>On bill, answer and cross-bill, &c., and oral proofs.</p>

<p>Ou bill for injunction. On final hearing on bill, answer, replication arid proofs.</p>

On application for preliminary injunction and motion to strike out supplemental information and bill. Heard on information and bill and affidavits, answer and affidavits, supplemental information and bill and affidavits and answering affidavit. The defendant is a railroad company organized in 1895, under the General Railroad laws.

<p>1. It is provided by statute that any judge of the court' out of which an execution issues may order discovery before himself or a designated supreme court commissioner, .and when taken by a commissioner the examination shall be certified by the judge making the order, who may appoint a receiver, subject to the orders of said court. — Held, that where one judge ordered discovery and another appointed a receiver, such appointment was invalid since the same judge must do both.</p> <p>2. The validity of an order appointing a receiver in supplementary proceedings may be attacked in a proceeding by such receiver to perfect title to the judgment debtor’s choses in action.</p> <p>3. Where the validity of the appointment of a receiver in supplementary proceedings was attacked in a suit by him to perfect title to the debtor’s choses in action, and subsequently the receiver was re-appointed properly, such reappointment could not be set up by a supplementary bill, since the receiver’s right to sue was fixed at the time of filing the original bill.</p>

<p>1. The marking or weaving of the complainant’s name on the selvedge or margin of silk manufactured by it is nothing more than a method of marking the manufacturer’s name on his goods, and cannot be protected as a patented process or trade-mark, though complainant first introduced the method in this ■ country.</p> <p>2. Where complainant advertised that its method of marking its name on the selvedge of silk was patented, and no patent-right existed, such action was ground for refusing complainant a preliminary injunction against one alleged to be infringing complainant’s name and method of use, where it did not appear that the necessity for such interference was absolutely imperative.</p> <p>3. Practice as to preliminary injunctions in trade-mark cases discussed.</p>

<p>1. That a husband is overbearing and unkind does not constitute such cruelty as to be of itself a cause of divorce or to convert the wife’s leaving him into desertion by him.</p> <p>2. A husband whose overbearing and unkind treatment has caused his wife to desert him is not entitled to divorce on the ground of desertion where he has not made advances and concessions at a time and in a manner suitable to obtaining her return.</p>

<p>On bill, answer and proofs.</p>

<p>On petition, answer and proofs.</p>

<p>On demurrer to bill.</p>

<p>1. Where, under a contract for the sale of land; it is provided that upon payment of the purchase-money a deed shall be delivered, and it appears that the vendor has put the vendee into possession and has always been ready to deliver the deed, that the vendee knew this, but has refused and failed to pay the purchase-money, an actual tender of the deed by the vendor is not a necessary preliminary to the filing of a bill for specific performance. .</p> <p>2. Where the proposed vendee is put into possession under the contract, he is entitled to the profits of the land, and the proposed vendor is entitled to interest on the unpaid purchase-money, unless some superior equity appears.</p> <p>3. Whether a clause providing for liquidated damages makes the agreement for sale an alternative one, depends, not upon the mere fact that the agreement contains such a clause, but upon the intent of the parties ascertained from the whole instrument with relation to the subject-matter of the contract.</p> <p>4. If it appears that the clause providing for liquidated damages was inserted to secure performance of the contract, and not to give an election to refuse to perform and to pay the damages, equity will enforce' specific performance.</p>

On bill, answer and proofs. The complainant is administrator of the estate of Susan Ferguson. In her lifetime, on May 16th, 1893, George Kunzman, the defendant, advanced to Miss Ferguson, on her four separate bonds and mortgages, covering four separate lots of land in Atlantic county, four separate sums of money to the amount of $1,500 each. The bonds and mortgages were all dated April 12th, 1893, and were all payable at the expiration of three years, with interest.

On bill, answer and proofs. The bill in this ease is filed by the complainant, declaring, so far as its allegations are well pleaded, that the complainant was induced by false representations to purchase shares of stock of the defendant company, which he tenders himself ready to return, and praying that the defendants who made the false statements, or knowingly accepted the benefit of them, may be decreed to return the price so fraudulently obtained.

<p>On demurrer to bill.</p>

' Ou bill, answer and proofs. The complainant files this bill as a judgment creditor to set aside a deed made by the defendant Alfred Somers to his son, Milton Le Roy Somers, alleged by the defendant to be without consideration, and for discovery touching the real estate belonging to the defendant, &c. The property is situated in Atlantic county. The deed was made July 23d, 1896, and recorded in Atlantic county clerk’s office on the same day.

<p>1. Specification of the cause of demurrer is not required'where the lack of equity in the bill, in the essentials of the main case presented, is so manifest that it can readily be discovered upon mere perusal.</p> <p>2. Equity will reform a declaration of trust which the trustee obtained to be accepted by a misrepresentation to the parties interested, whereby his own proportionate share in the trust was increased, so that it shall conform to the true agreement between the parties.</p> <p>3. A cause of demurrer, based upon a misstatement of the effect of the bill, will be overruled.</p> <p>4. A demurrer to several parts of a bill will not be sustained, if upon any of the parts to which the demurrer is addressed, the complainant is entitled to relief.</p> <p>5. In order that a plea of a former action pending may be sustained, it is necessary that all of the relief to which the complainant may be entitled in the second suit should be attainable in the first, and the remedy there afforded must be equally as beneficial to the complainant as that which he may secure in the second suit.</p>

<p>Prior advances and services by grantee, not considered by the parties as creating any debt till the grantor was threatened with financial troubles, will not furnish a consideration for a deed so as to render it other than voluntary as against the grantor’s creditors.</p>

<p>1. In order to have a right to file a bill to quiet title, &c., under Gen. Stat. p. 3486, it is not necessary that the possession of the complainant shall be shown to be adverse in the sense required of a -party who claims title by adverse possession against a proven documentary title. The complainant’s possession is sufficient to meet the jurisdictional requirements if it is peaceable, and-under a claim to the ownership of the premises.</p> <p>2. Where the acts of possession are proven to have been done without dispute, under a belief and claim on the part of the complainant that she owned the premises, and show an occupation and use of the property for all of the purposes for which its nature enabled it to be used, it is a sufficient exhibition of the peaceable possession under claim of ownership required by the statute.</p>

On bill, answer and stipulation as to the facts. This cause was heard on bill, answer and stipulation that a narration of facts submitted should be taken to be true as if proven. The bill is filed by the holders of a bond made by one Jesse S. Adams on October 7th, 1872, conditioned for the payment of $3,000, with interest, in one year from date, the payment of which was secured by a mortgage of like date, also made by Adams upon lands in the city of Burlington.

On bill for specific performance and answer. On bill for partition and answer. Held: since her death, by her devisees. Neither the devisees named in William King’s will nor those claiming' under them have joined with the executors in the deed under the contract to convey to Rich. That deed purports to convey a fee-simple estate, solely by virtue of the power of sale given to the executors in William King’s will.

On bill, answer and proofs. The complainant is the receiver of the Granite State Provident Association, an association organized under the laws of the State of New Hampshire, authorized, among other things, to build houses, loan money on real estate, securities, &c., and to conduct the business of a building association.

On bill for alimony, answer and proofs. The complainant, under section 20 of the Divorce act (Gen. &Hat. p. W70), alleges that her husband has abandoned and does not support her, and seeks a decree for alimony.

<p>Complainant advanced money to defendant under a contract that defendant should manufacture and ship glass to complainant according to orders, that the debt should be secured by a note and mortgage, and that all invoices of glass should have deducted from them ten per cent, of the invoice price,.to be credited on the mortgage, which stipulated that the loan should be paid in six months. — Held, that, construing the note and mortgage together, they showed no intention that the payment of the debt should be extended until such time as the ten per cent, deducted from invoices shipped should satisfy the mortgage.</p>

<p>-h A lunatic must sue by guardian who has been appointed by the order of some competent court,' and a bill which avers the lunacy of a complainant, and that she sues by her next friend, without any averment of appointment, &c., is demurrable.</p> <p>2. A bill to quiet title cannot be filed by persons who claim an interest in lands, but who are not in possession of any of them, either under the statute of 1870 (Gen. Slat. p. 3486) or under the general equity powers of this court.</p> <p>3. Equity will not entertain a suit in which no equitable question is presented, which seeks a decree that the complainant’s legal title to lands is good, and that the defendant’s legal title is bad. Such questions must be determined by a suit at law.</p>

On bill for injunction, answer and proofs. The four complainants are the owners as tenants in common in fee, each of the undivided one-fifth part of a steam grist-mill property in Burlington, New Jersey. The defendant is the ■owner of the other undivided fifth part.

On bill, answer and proofs. The complainant, Amos K. Ashby, is the occupant of a gristmill and dwelling-house property situate on Delaware avenue, in the city of Burlington. The property was owned by his father, Edward Ashby, who died on the 15th day of May, 1888, seized of the same in fee-simple.

v. East Orange: The complainant is a corporation organized under the General Corporation act for the purpose of supplying electric light and power, and in the exercise of its corporate rights has strung certain electric wires along a street known as Central avenue, within the territorial 'limits of the defendant, the township of East Orange.

Benjamin H. Brown, president of the United States Hotel Company, put in the hands of William Riddle, a real estate dealer and broker, certain property belonging to the United States Hotel Company for sale, at the price of $30,000, on a commission of two per cent. Mr. Brown was informed by Mr. Riddle that he had sold the property to.a Mr. Mason, and an agreement for the sale thereof to Mr. Mason was executed on April 24th, 1891, at which time $500 was paid down.

<p>On appeal from a decree advised by Vice-Chancellor Pitney.</p>

<p>1. At the suit of a member of a mutual insurance company, a preliminary injunction may be awarded to restrain the directors from changing the company into a joint stock company when the company itself has not taken the proceedings prescribed by the Insurance Companies act.</p> <p>2. The procedure for changing a mutual insurance company into a joint stock company, under that act, indicated.</p> <p>3. Under the amendment of the Insurance Companies act, which was passed March 6th, 1899, a mutual insurance company organized in 1893 cannot transform itself into a joint stock company against the will of a member who acquired membership by contract with the company, made before the passage of that amendment.</p>

<p>A certificate of guarantee issued by the United States Credit System Company construed in certain respects.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 12 Dick. Ch. Rep. 101.</p>

<p>On appeal of Alfred W. Booth et al. from decree advised by Yice-Chancellor Pitney, whose opinion is reported in 12 JDich. Ch. Rep. 503.</p>

On appeal of Jerome Taylor et al. from decree advised by Vice-Chancellor Eeed. The cause was heard on bill, answer and stipulation. The following is a chronological statement of the facts: 1890. The United States Credit System Company, organized under the Mar. .27.

<p>1. The president of a corporation, though the active manager of its affairs cannot encumber its property by a mortgage without the concurrence of its board of directors.</p> <p>2. The subsequent ratification of the mortgage by the directors, having been made in contemplation of the insolvency of the corporation, did not give the mortgage validity.</p> <p>3. The receiver of the corporation, as the representative of creditors, may urge the objection that such mortgage was not obtained in such a manner as to be binding upon the corporation.</p>

. On October 5th, 1897, Thomas Coombe was the owner of a foundry and its machinery, and certain lots of land in the city of Lambertville. On that day he made a deed to Thomas Car-thew for the same, reserving to himself a life interest therein. The named consideration in the deed are services, board, care and $500. The property is subject to a mortgage for $1,200.

I am convinced that the defendant was guilty -of the adulterous acts charged. Her habits of inebriety destroyed her sense of modesty, and the gratification of her taste for liquor was the bribe by which her virtue was successfully assaulted.

The question in the case turns upon the defence set up by the defendant as his excuse for non-performance, or, as he claims, his rescission of the contract. As the parties themselves are, in many respects, in contradiction of each other, the documentary proofs and the testimony of others may more safely be accepted as to the facts touching the disputed matters.

It is admitted that the defendant left the habitation of her husband and has remained away more than two years, during which she has made no overture for a return.

My only doubt is whether the assignee participated in such intent. It certainly looks as if there was a tacit, if not an express, understanding that Jewell was to have the control of this property after the assignment as fully as before, with the possible exception that the assignee was to be paid the amount which she had loaned Edward.

Oa appeal from a decree advised by Vice-Chancellor Reed, who delivered the following conclusions : Peter Campbell died January 24th, 1890, aged ninety years, leaving six children, one of whom was William G. Campbell, the complainant, and another was Josephine A. Van Patten, the defendant. He made his will in 1877. He left his homestead to his widow for life, and after her death to the children of his children.

<p>' On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in 13 Dick Ch. Rejo. £93.</p>