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5. By such representation, cousins and senting to it with others, and will

more remote descendants of de- not be entitled to a divorce for a
ceased uncles of an intestate are subsequent act of adultery with a
the same degrae as living uncles, differont person. It will not affect
and inherit, by representation, the the case, that the act of adultery at
share of such deceased uncle. Ib. which the husband connived was

not committed.

Ib.

DESERTION.

1. If a husband sees what a reason-

able man could not see without
See DIVORCE, 6, 9, 10, 12.

alarm, or if he knows that his wife
has been guilty of ante-nuptial in-

continence, or if he has himself se-
DEVISE.

duced her before marriage, he is

called upon to exercise peculiar
See EXECUTION.

vigilance and care over her, and if
WiL, 3.

he sees what a reasonable man
could not permit, and makes no

effort to avert the danger, he must
DISCOVERY.

be supposed to see and mean the
result.

Ib.
See PLEADING, 1, 2.

5. He is not discharged from the ex-

ercise of such vigilance by the fact
DISMISSAL.

of his having deserted his wife and

all his marital obligations for three
See PRACTICE, 11.

years, or his having obtained a di-
vorce another state. If the mar-

riage relation exists in this state,
DIVIDEND.

so that he can complain of a viola-

tion of its obligations, he cannot
See ASSIGNMENT FOR BENEFIT OF claim advantage of his wife's in-
CREDITORS, 1.

continence, when caution on his

part would have prevented it. 16.
DIVORCE.

6. Qurre. Whether desertion for three

years, under circumstances which
1. A party who has negatively vio- entitled the defendant to a divorce

lated the marriage contract in its before the commencement of com-
two most vital points, to love and plainant's suit, and before any
to cherish, and has only performed adultery proved against defendant,
it in the last and least, to support, would bar the complainant.
cornes into a court of equity with
an ill grace to complain of a posi- 7. It is not sufficient to entitle a party
tive breach by the party whom he to a divorce on the ground of adul-
first injured. Derby v: Derby, 36. tery, to prove that the defendant

who might be supposed willing to
2. Unsupported evidence by an al- commit the adultery, was in a posi-

leged paramour as to a wife's ante- tion in which it was possible to
nuptial incontinence, is insufficient commit it. It must be shown that
to overcome her positive denial. the defendant and the party with
Even if fully proved, such inconti- whom the crime is charged to have
nence would be no foundation for been committed, were together
a divorce, nor admissible to support under suspicious circumstances,
proof of her subsequent adulterywhich cannot be easily accounted
Hedden v. Hedden,

61 for, unless they had that design, or

which could not well be explained
3. A husband who connives at or as- without it. Mayer v. Mayer, 246.

sents to adultery by his wife with
one person, will be deemed as as-18. The testimony of defendant

1.

charged with adultery, and of thell height of the structure of the dam,
supposed adulterer, is competent, but is commensurate with the ac-
and in a doubtful case, must con- tual enjoyment of the easement, as
trol the question.

I. evidenced by the extent to which

the land of the owner of the ser-
9. Improvidence and gross intemper- vient tenement was habitually or

ance on the part of the husband usually flowed during the period of
and a failure to support luis wite, prescription. Carlisle v. Cooper, 576
may justify her in leaving him, but
do not amount to the extreme 2. As a general rule, the height of the
cruelty that would justify a divorce

dam when in good repair and con-
a mensa et thoro, much less will
they convert her leaving into a deli appendages as make its efficient

dition, including such parts and
sertion by him, so as to entitle her
to a divorce for it. Loing v. Laing,

height in its ordinary action and
218

operation, fixes the extent of the

right to flow, without regard to
10. When husband and wife are living

fluctuations in the flowage which

are due to accidental causes, such
separately, and one seeks a divorce
from the other on the ground of

as a want of the usual repairs, or
desertion, the facts relied upon to

the variation in the quantity of

water in the stream in times of low
convert the living separately into a
desertion, must be proved by other

water or drought, or in the pond-
testimony than the oath of the

age of the dam by its being drawn
down by use.

Ib.
complainant alone. Woodworth v.
Woodworth,

251

3. There may be such continuity of
11. nough the testimony of a party

use of flash boards as that they, in
is competent in divorce cases, a di- effect, are parts of the permanent
vorce will never be granted upon

structure, and by such user a right
such testimony alone as to the

to flow by means of a permanent
cause of such divorce.

Ib. dam to the height of such boards

may be acquired, but the occasional

use of Hash boards for short periods,
12. Refusal by a wife of marital in- when little or no injury may be

tercourse with her husband does not
justify him in deserting her. Reidl

done, as an exception to the general

rule not to keep them on, does not
v. Reid,

331

amount to the open, uninterrupted,

and notorious adverse use necessary
13. When in a suit for divorce adul-

to establish a prescriptive right. Ib.
tery is pleaded in recrimination,
the acts of adultery must be desig-
nated and specified in the same
manner required in a bill or peti-

ENROLLMENT.
tion for divorce for adultery'. І.!!

See PRACTICE, &
14. A charge of adultery pleaded in

recrimination as a bar to divorce,
must be sustained by other proof EQUITY OF REDEMPTION.
than the unsupported evidence of
the defendant pleading it. 16. Where a deed, absolute on its face, is

given as a security for the par.
See EVIDENCE, 2, 3.

ment of money, by or for the
grantor to the grantee, it will be

held in equity that the grantee
EASEMENT.

took the premises subject to re-

demption. "Crane v. Decamp, 414
1. The extent of the right to flow the

lands of another acquired by ad- See ASSIGNMENT FOR BENEFIT OF
verse user, is not determined by the

CREDITORS, 1, 4.

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Co. v.

ESTOPPEL.

dissolve the injunction, is not evi-

dence on the hearing of the cause.
An equitable estoppel will affect a Walker v. Hill's Ex'rs,

191
subsequent purchaser to the same
extent as his grantor, when he has 7. The testimony of a complainant,
had actual notice of the condition taken after the defendant's execu-
of things upon which it is based, or tors were made parties, but before
when the circumstances are such as either of them had been sworn as
to put him upon inquiry to ascer- witnesses, is incompetent; and if
tain the facts. Raritan Water Power such party is objected to as incom-
Vegite,

163 petent when offered, his testimony
is' inadmissible.

16.
See RAILROAD COMPANY, 6.

8. Upon a reference to examine and

report whether the interest of in-
EVIDENCE

fants requires and will be promoted

by a sale of their lands, the master
1. A witness should not be allowed to must report his own opinion, formed

have his direct testimony read to from facts, not that of others, nor
him before cross-examination. Such an opinion founded upon that of
irregularity is not sufficient to sup- others without facts. Mere opinion
press the testimony, but must of witnesses is no evidence. In
almost destroy the credibility of the Matter of Heaton,

221
witness. Derby v. Derby, 36

9. The testimony of the father and
2. A written confession of adultery, mother, owning a life estate in the
formally sworn to before an author- premises, that the interest of the
officer, will have no weight as

infants would promoted by a
evidence when made under circum- sale, when they would be clearly
stances which compel the belier! benefited by the sale at the ex-
that it was not fairly obtained or pense of the infants, should not be
understandingly made.

16.

acted on and hardly received. Ib.
3. The testimony of a single witness 10. An answer, though responsive,

may be sufficient proof of adultery has not the effect of evidence,
to sustain a decree of divorce, where the facts are not within the
though denied by the defendant personal knowledge of the defend-
upon oath. But such effect must ant. It throws the burden of
depend upon the probability of the proof on the complainant, but has
story, the character of the witness, no further weight.

Lawrence v.
and consistency of his evidence, Laurence,

317
and perhaps somewhat on the char-
acter of the defendant.

16.11. The affidavits to the bill and an-

swer are not evidence at the final
4. When the matters constituting the hearing. Attorney-General v. Stew-
complainant's equity are clearly ard,

340
and definitely denied in a respon
sive answer, they must be proved 12. An objection to an instrument as
by the oath of more than one wit- evidence, on the ground of a want
Zane v. Cawley,

130 of a sufficient United States reve-

nue stamp, comes too late after such
5. The unsupported testimony of the instrument has been offered and re-

complainant is not sufficient to ceived in the cause without opposi-
overcome the responsive denial of tion. DeCourcey v. Collins,

357
the answer. Calkins v. Landis, 133

13. When the language of a written
6. The oath annexed to an answer to contract is ambiguous, or otherwise

a bill which prays for answer with- doubtful, evidence from without is
out oath, though evidence against admissible to show the real intent
the complainant on a motion toll of the parties. Suffern v. Butler, 410

ness.

14. But such evidence can not be ad."

EXECUTOR.
mitted when the language is so
clear and explicit as to leave no See POWER OF SALE.
room for doubt as to its meaning,

Il.

FINAL HEARING.
15. A deposition of a deceased or

foreign witness, appended to an in- See EVIDENCE, 6, 11.
junction bill, is not competent in
the absence of proof that the suit
in which it was taken was between

FOREIGN JUDGMENT.
the same parties and related to the
same subject matter, and the only a judgment recovered in the state of
legitimate proof of such deposition New York must receive here the
is by a compared or duly certified

same effect to which it is entitled
copy. C. & A. R. Co. v. Stewart,

there. Chew v. Brumagim, 520
484

FORFEITURE.

16. There is no relaxation of the rules

of evidence with respect to affida-
vits annexed to injunction bills

ІВ,

See CHARTER, 5,

SPECIFIC PERFORMANCE, 21.

17. A promise to execute a deed or
writing in the nature of a declara-

FRAUD.
tion of trust of lands, cannot be
proved by parol. Marshman : 1. Courts of equity have, peculiarly
Conklin,

546

cognizance of matters of fraud, and

have jurisdiction over instruments
See DIVORCE, 2, 7, 8, 10, 11, 14, affected by fraud, and will declare

LIMITATIONS, STATUTE OF, 1. them void on that account, even
Master'S REPORT.

though the fraud is such as might
PLEADING, 13, 16.

be proved at law so as to avoid the
SALE OF LAND FOR PAYMENT OF effect of the instrument. Monmouth
DEBTS, 2.

County Mutual Fire Ins, Co. r.
SPECIFIC PERFORMANCE, 31. Hutchinson,

107
WITNESS

2. Fraud in this case held to be estab-

lished, but even if it was perpe-
EXECUTION

trated without the complainant's

knowledg, yet there was clearly
Where a testator made his executors

such mistake as to entitle the de

fendant to relief in this court. Ber-
trustees of all property, estate or

370
interests, given or devised by his rymon v. Graham,
will (excepting a life estate in the
mansion-house devised to his son), 3. A failure or refusal by a grantee of
with authority to sell and convey

lands to execute a declaration of
all or any part of his real estate, trust therefor in accordance with an
the power to sell prevails over the alleged promise so to do, does not,
prior devises; and an execution of itself, amount to what is meant
levying on such estate and interests, in law by fraud, imposition, uncon-
issued after the same were sold and scionable advantage, or undue influ-
conveyed by the executors, upon a

Marshman v. Conklin, 546
judgment recovered before such
sale and conveyance, is subordinatel See CONTRACT, 2, 3.
to the power of sale and can have

MORTGAGE, 7, 8.
no effect on the property. Wetmore

PLEADING, 11.
v. Midmer,

242

PURCHASER.

ence.

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FRAUDS, STATUTE OF.

INFANTS.
I. A mortgage given by an insolvent 1. When an issue is made by the

firm to trustees to secure bonds, pleadings and proofs on the ques-
which the debtors subsequently tion of the right to the permanent
passed to their creditors, declared custody of infants

, the case ad-
to be void under the second section dresses itself to the general author-
of the statute of frauds, and within ity of equity as the public guardian
the rule in Owen v. Arvis, 2 Dutcher of infants. Baird v. Baird, 384
23. Bank of the Metropolis v.
Sprague,

530 2. In such a proceeding it is not the

technical right of either parent
2. But it is void only as to those cred- which will control the decision, but

itors who have raised the issue by the primary motive of judicial
their pleadings.

action will be the well-being of the
infants.

І.
3. The right of the insolvents to pass

the bonds to their individual cred - 3. In the exercise of its legal discre-
itors not assented to.

Ib. tion, the court in this case gave

some of the children into the cus-
See PLEADING, 13.
tody of each parent.

Ib.

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See Will, 9.

FRAUDULENT ASSIGNMENT.

See JUDGMENT CREDITOR, 1, 3.

INFANTS' LANDS.

1. It is not a sufficient reason for the
FUTURE ADVANCES. sale of infants' reversionary estate

in lands, that the property is so
See MORTGAGE, 3.

much out of repair that it would
now cost more to put it in tenant-

able repair than the income would
GRANT.

justify, when the property has been

in the actual possession of the life
See RAILROAD COMPANY, 4.

tenants. If they have suffered it
to get out of repair, they are bound

to put it in as good repair as it was
HOTCH POT.

when they entered upon it. In incl.
ter of Heaton,

221
Sce PLEADING, 3.

2. Upon an application far the sale of

infants' reversion in land, the only
HUSBAND AND WIFE. question is, will the property bring

as much now as it will at the death
See SPECIFIC PERFORMANCE, 6, 7.

of the life tenant? If it will not,
WITNESS, 1.

it is not for the interest of the in-
fants to sell, if the life tenant is to
receive a share of the proceeds, or

of the income from them, according
INADEQUACY OF CONSIDERA-

to the rules of this court. 16.
TION.

See SHERIFF'S SALE.

INJUNCTIOX.

IMPERTINENCE.

1. A stipulation in a lease of a quarry

of a horse shoe shape, and having
faces on the northwest, north, east,
and southeast sides, "that said
quarry shall be worked as the face

See APPELLATE JURISDICTION, 2.

PLEADING, 16.

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